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  6. Chapter 15 - Waters of the U.S. and the State

Chapter 15 - Waters of the U.S. and the State

What Does This Topic Include?

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.

Waters of the U.S. and the State Decision Tree

View the Waters of the U.S. and the State Decision Tree (PDF)

Laws, Regulations and Guidance

Also see Chapter 1 - Federal Requirements and Chapter 2 - State Requirements

Federal Laws

Federal Regulations

Federal Executive Order

State Laws

Guidance

Caltrans and FHWA Procedures

Further References

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:

Identification of Regulatory/Management Agencies

Federal Agencies
Agency Regulation Authority
U.S. Army Corps of Engineers
(USACE)		 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
(U.S. EPA)		 CWA Enforcement of regulations; may enforce violations of USACE 404 permits
NEPA Commenting authority
U.S. Fish and Wildlife Service
(USFWS)		 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
NEPA Cooperating Agency
National Marine Fisheries Service
(NOAA Fisheries)		 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
NEPA Cooperating Agency
U.S. Coast Guard
(USCG)		 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
NEPA Cooperating Agency
Natural Resources Conservation Service
(NRCS)		 Food Security Act of 1985 (Swampbuster) Approves wetland/waters determinations on agricultural land
State Agencies
Agency Regulation Authority
California Department of Fish and Wildlife
(CDFW) 		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
(RWQCB) 		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
(CCC) 		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
(BCDC) 		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
(SLC) 		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

Interagency Coordination

Early Coordination

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.

Caltrans 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.

NEPA/404 Integration MOU Process

Caltrans has implemented early coordination with the state and federal agencies involved in the wetland/waters regulation process. Caltrans signed a Memorandum of Understanding (MOU) with the 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 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 Caltrans' 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 EIS 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 a "NEPA/404 Integration MOU Project."

In consultation with one another, Caltrans 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, Caltrans will consult with all Signatory Agencies about the appropriate course of action. Caltrans, as assigned by FHWA, will make the final decision as to whether or not a project is an Integration Project.

Discussion Points: Early Coordination Meeting(s)

At a minimum, the early coordination meeting shall:

  • Determine if wetland/waters are present within the Biological Study Area (BSA) by undertaking the wetland/waters delineation and assessment process conducted by a qualified Biologist. Caltrans recognizes the joint definition of waters and wetlands issued by USACE and U.S. 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 electronic copies of the Wetland Study (Technical Report) and 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.

NEPA Assignment: 23 USC 327

See also SER Volume 1, Chapter 38

NEPA Assignment authorizes Caltrans 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. Caltrans' original application, and a Memorandum of Understanding between Caltrans and FHWA, identify Caltrans' and FHWA's roles and responsibilities under NEPA Assignment. Under NEPA Assignment, FHWA assigned and Caltrans assumed all of the Department of Transportation (USDOT) Secretary's responsibilities under NEPA. Caltrans has also assumed the USDOT Secretary's responsibilities for environmental review, interagency consultation, and regulatory compliance for the review and/or approval of projects. Caltrans has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the 23 USC 327 MOU (see also Appendix B of the 23 USC 326 CE Assignment MOU). Caltrans 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.

Reporting

See also SER Volume 3, Chapter 3, Section 3-8.

Determining the Need for a Separate Technical Report

A Wetlands/Waters Delineation Report and Wetlands/Waters Assessment are prepared for all projects where waters or wetlands may be affected.

The Technical Report: Wetland Delineation - Wetland Assessment

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).

Preparer Qualifications

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) or Environmental Scientist. Refer to the Caltrans 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.

Recommended Methodologies

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.

Content and Recommended Format

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.

Processing and Approval

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 Caltrans' continuing effort to streamline the environmental process and facilitate development of well crafted, high quality environmental documents and technical reports, Caltrans 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 Caltrans biological technical studies. The quality control process will be documented and available in the project file for review.

Sample Technical Report

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.

Effects Assessments

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, indirect, and cumulative effects, refer to 40 CFR 1508.1(g). For CEQA definitions refer to the Guidance for Preparers of Cumulative Impact Analysis on the SER.

Information Needed for Project Delivery

Regional Transportation Plan

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 (RTPAs) 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 RTPAs. MPOs 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. Caltrans encourages the MPO and RTPA to include the following information, as appropriate, in the environmental document for the plan:

  1. Statement of purpose and need for project, at a level of detail appropriate for the corridor or subarea stage of project development;
  2. Verification of concurrence by the NEPA/404 Integration MOU signatories on the RTP statement of purpose and need;
  3. Location of any previously delineated jurisdictional wetlands/waters in corridor or study area (displayed on USGS quad 7.5' or 15');
  4. Presence of "waters of the U.S." in the BSA; and,
  5. Identification of possible future disposal areas in corridor or biological study area, if appropriate (for subsequent Section 404 permit).

Project Initiation Document

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.

Appendix L of the PDPM (Preparation Guidelines for Project Study Report) stipulates 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. 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 on the LAPM Forms page, see Chapter 6, Exhibit A. Instructions for completing the PES can be found in Exhibit B. 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:

  1. Verification of all information from RTP stage.
  2. Location and size of any previously delineated jurisdictional wetlands, or other waters within the BSA.
  3. Location of wetland and upland vegetative communities within the BSA.
  4. Functions and values of compensatory mitigation, if appropriate.
  5. 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.

Draft Environmental Document / Draft Project Report

This information should be presented in the Draft Environmental Document or used as supporting documentation for a Categorical Exclusion/CEQA Exemption, as appropriate.

Verify all information from RTP stage and PID stage, and:

  1. Concurrence on project purpose and need and alternatives by NEPA/404 Integration MOU signatories, when applicable.
  2. Delineate type, quality, functions and values of wetlands, or other waters within the BSA.
  3. Description of project effects on aquatic resources and their functions and values.
  4. Analysis of effects of project alternatives.
  5. Feasibility analysis of potential compensatory mitigation sites.
  6. Draft 404(b)(1) with preliminary identification of Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable.

Final Environmental Document / Project Report

Under a separate subheading, include 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 effects to wetlands, include the following information in the final environmental document:

  1. Wetlands Only Practicable Alternative Finding (WOPAF).
  2. Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable.
  3. Detailed description of mitigation measures for wetlands, or other waters, resources, and associated sensitive species.
  4. Final feasibility study of compensatory mitigation sites, if appropriate.
  5. Cost estimates for mitigation measures.

For the final environmental document, the District Biologist may refer to the SER, Forms and Templates, Environmental Document Review Checklist for major required content per the annotated outline provided.

Permit Requirements

Federal Permits

State Permits

Activities That May Occur During Construction

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.

Quality Control and Assurance for Biological Technical Documents

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. Caltrans 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 Caltrans 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 Environmental Scientist or Senior Environmental Planner or Senior Environmental Scientist (Specialist or Supervisory) 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 or Environmental Scientist 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.

Additional Information for Biologists

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.

National Pollutant Discharge Elimination System Permits and Relation to other Regulations

Federal and state environmental regulations based on the CWA require the control of pollutants from Municipal Separate Storm Sewer Systems (MS4s), construction sites, and industrial activities to waters of the U.S. (as defined by the U.S. EPA) and to waters of the state (as defined by the Porter Cologne Act).

Under Section 402 of the CWA, Caltrans is required to comply with all applicable NPDES Permits, including but not limited to: Caltrans NPDES MS4 permit, Construction General Permit, Lake Tahoe Construction General Permit, and Industrial General Permit. In addition, Caltrans is required to comply with additional, project-specific stormwater requirements, such as:

Under the federal stormwater regulations, Caltrans properties, facilities, and activities come under the jurisdiction of NPDES stormwater regulations for two primary reasons:

Additionally, compliance may be required under the Lake Tahoe Municipal NPDES and Tahoe Construction General Permits or the Industrial General Permit, e.g., for a batch plant.

District NPDES Coordinators Roles and Responsibilities:

  • Coordinating with their District functional units concerning NPDES permitting information. The District NPDES Coordinators collaborate and oversee permitting issues by working directly with each functional unit’s Stormwater Coordinator.
  • Acting as the primary source of communication between Caltrans HQ functional units and the Districts. The District NPDES Coordinators distribute new stormwater information to the functional unit coordinators and help the Districts implement the Stormwater Management Plan (SWMP) that outlines compliance with the Caltrans MS4 NPDES Permit, the Statewide CGP, Federal CGP, and addressing other CWA permits and regulations.
  • Developing District stormwater quality policies and guidance that align with statewide policies.
  • Developing the Stormwater District Work Plans (DWPs).
  • Coordinating with the District’s Environmental Unit to define stormwater quality issues in environmental planning documents, providing information about Total Maximum Daily Loads (TMDLs) Section 303(d) listed water bodies, Significant Trash Generating Areas (STGAs) and other water quality information during the Project Initiation Document (PID)/Project Initiation Report (PIR) and Project Approval and Environmental Document (PA&ED) phases and providing water quality language in the Project Report.
  • Preparing and/or reviewing Water Quality technical studies to assess water quality impacts resulting from transportation improvements in compliance with CEQA and NEPA, including Water Quality Assessment Reports (WQAR).
  • Assisting with the preparation of TMDL Compliance Reports, water quality related permit applications including 401 certifications, and other stormwater related documents.
  • Reviewing Storm Water Data Reports (SWDR), contract Plans, Specifications, and Estimate (PS&E) for inclusion of permanent erosion and sediment control measures, including permanent stormwater treatment measures that are designed to improve or minimize a project’s water quality impacts.
  • Serving as the District’s stormwater point of contact with outside agencies and the public; engaged in regular communication with Regional Water Quality Control Boards (RWQCBs); including reporting instances of noncompliance, submitting applications for individual NPDES permits, (e.g., dewatering), filing notifications of aerially deposited lead (ADL), and other compliance documents.
  • Assisting the District and HQ with tracking and incorporating Treatment Best Management Practices (TBMPs) to comply with TMDL as described in Caltrans NPDES Permit and Time Schedule Order.
  • Assisting the District and HQ with tracking and incorporating full trash capture BMPs, other treatment controls, and/or institutional controls to comply with the trash implementation requirements as described in the Caltrans NPDES Permit.
  • Ensuring the entry of the project’s TBMPs into the Stormwater Portal at PID, PA&ED, and PS&E phases of project delivery and consistency with Stormwater data in the Integrated Maintenance Management System (IMMS).
  • Certifying Stormwater commitments are met at Ready to List (Milestone 460), Construction Contract Acceptance (Milestone 600), and Project Close Out (Milestone 800) by completing the “Permanent Stormwater Treatment Best Management Practice or Alternative Compliance Certification Forms (Stormwater TBMP Certification)” located on the SER Forms and Templates page.
  • Coordinating with the Construction and Maintenance Stormwater Coordinators, in tracking, and reporting the District’s response to illegal connections/illicit discharges (IC/IDs) and non-permitted non-stormwater discharges.
  • Responding to Notices of Violation (NOV) and/or enforcement actions issued by the RWQCBs.
  • Participating in the Construction to Maintenance 90% walkthrough and handoff for projects incorporating permanent stormwater treatment facilities.
  • Acting as a Duly Authorized Representative (Approved Signatory) for Caltrans MS4 Permit compliance for electronic report and data submittals in SMARTS for the Caltrans NPDES Permit.
  • Assisting responsible parties at all Enforcement Response Program (ERP) levels to restore Caltrans’ construction, encroachment permit, maintenance facility or maintenance field activities to compliance.
  • Acting as the primary liaison and single point of contact on stormwater and waste discharge issues between the District and HQ, U.S. EPA, and other agencies.

(Last content update: 12/08/2022, JH)