STATE WATER RESOURCES CONTROL BOARD
BOARD MEETING
SESSION--DIVISION OF WATER QUALITY
ITEM: 12
SUBJECT:
CONSIDERATION OF APPROVAL OF PROPOSED REVISED REGULATIONS FOR WATER QUALITY CERTIFICATION PROGRAMS
DISCUSSION:
Section 401 of the Federal Water Pollution Control
Act (Clean Water Act) (33 United States Code §1341) requires
that anyone seeking a federal license or permit for an activity which may
discharge to national waters must receive certification from the applicable
state that such discharges will comply with state and federal water quality
standards and with state laws.
Sections 13160 and 13160.1 of the California Water Code authorize
the State Water Resources Control Board (SWRCB) to administer the Water
Quality Certification Program.
Section 1058 of the Water Code allows the SWRCB to adopt
regulations necessary to carry out its powers and duties under federal and
State laws. Regulations governing the
Water Quality Certification Program and other types of programs (e.g., tax,
small business, and pollution control) and the petition process for challenging
all certification actions were enacted in 1981 (23 California Code of
Regulations [CCR] §§3830-3869). No changes
to the Water Quality Certification Program regulations (23 CCR
§§3855-3864) or certification petition process regulations
(23 CCR §§3867-3869) have been made since then.
Requests for water quality certification generally originate from two groups: (a) persons or entities seeking licenses or license amendments from the Federal Energy Regulatory Commission (FERC) to construct and operate hydroelectric, pipeline, and other energy-related facilities and (b) those seeking permits from the U.S. Army Corps of Engineers for the discharge of dredged or fill materials to waters of the United States. The first category of projects frequently involves construction, operation, and maintenance of power-generating dams and related facilities. The latter includes development, flood control, and infrastructure construction/repair projects.
Staffs of the SWRCB and the Regional Water Quality
Control Boards review projects for compliance with water quality standards
(i.e., beneficial uses, objectives, and antidegradation policy). The certification-application review process
is similar to that employed in developing water quality permits (e.g., Waste
Discharge Requirements [WDRs]).
Applicants for certification of dredge/fill projects currently pay a
project size-based fee. There are at
this time no specific certification application fees for FERC-related projects,
although the application process is frequently a lengthy and resource-intensive
process.
SWRCB staff proposes changes to the regulations
(Attachment 1) governing water quality certification and other certification
programs to: (1) delegate certification authority for dredge/fill projects to
the RWQCBs and Executive Officers of the nine RWQCBs; (2) implement a new
fee schedule to appropriately compensate the SWRCB for reviewing and processing
applications for certification for hydroelectric (FERC) projects; (3) make
the certification program petition process consistent with that in place for
other existing water quality regulatory programs (e.g., WDRs); and (4)
bring the regulations into general compliance with existing State and federal
laws and regulations.
POLICY ISSUE:
Should the SWRCB approve the proposed revised regulations for the Water Quality Certification Programs and authorize the Executive Director to submit the proposed regulations to the Office of Administrative Law for approval?
Applicants currently pay no fees or relatively small
fees for certification of hydroelectric facilities. The proposed new certification fee schedule is based on the
amount of work required to review the application. A table of certification application fees anticipated for
facilities seeking FERC relicensing is included (Attachment 2).
In the absence of appropriate fees, FERC activities
are currently funded through a General Fund appropriation. Any fees collected in the future as a result
of the proposed regulations will be used to reduce yearly expenditures from the
General Fund. Even after
implementation, fee revenues will vary significantly from year to year. For this reason, the General Fund must
continue as a revenue source. The level
of budget authority is currently adequate for yearly support of this
(hydroelectric project-related) portion of the Certification Program. Therefore, there is (currently) no need to
request a change to that level.
Applicants
currently pay reasonable application handling fees to receive certification for
dredge/fill-related projects. There
will be no fee increase for such application fees as a result of the proposed
regulations. The regulations do propose
a new, nominal ($60) notification fee with limited applicability (i.e., when a
federal general permit is certified and when certification conditions require
subsequent project-by-project notification to the State before project
construction begins).
RWQCB IMPACT:
All
RWQCBs.
STAFF RECOMMENDATION:
That the SWRCB approve the proposed revised regulations for the Water Quality Certification Programs and authorize the Executive Director to submit the proposed regulations to the Office of Administrative Law for approval.
Note: The table of certification application fees anticipated for facilities seeking FERC relicensing is not available electronically. For copies, contact: Timothy Stevens/Division of Water Quality/State Water Resources Control Board
_________________________________________________________________
STATE WATER RESOURCES
CONTROL BOARD
RESOLUTION NO. 2000-__
APPROVAL
OF PROPOSED REVISED REGULATIONS FOR
THE WATER QUALITY
CERTIFICATION PROGRAMS
WHEREAS:
1. The Water Quality Certification Program, as established by section 401 of the Federal Water Pollution Control Act (Clean Water Act) (33 United States Code [USC] §1341), is an important regulatory tool available to the State Water Resources Control Board (SWRCB) and Regional Water Quality Control Boards (RWQCBs) in their efforts to manage discharges to waters of the State of California.
2. On April 29, 1999, the SWRCB published a notice of proposed rulemaking and publicly circulating a first draft of proposed revisions to the regulations which govern the Water Quality Certification Program.
3. The SWRCB held a hearing on June 8, 1999 to better solicit public comments on the proposed regulations. Two-hundred and sixty-five written and verbal comments from 20 separate organizations and individuals were received.
4. On December 24, 1999, the SWRCB staff circulated for review and comment a final draft of the proposed revised regulations amended in response to those public comments.
THEREFORE
BE IT RESOLVED THAT:
The SWRCB approves the proposed revised regulations
for the Water Quality Certification Programs and authorizes the Executive
Director to submit the proposed regulations to the Office of Administrative Law
for approval.
The
undersigned, Administrative Assistant to the Board, does hereby certify that the
foregoing is a full, true, and correct copy of a resolution duly and regularly
adopted at a meeting of the State Water Resources Control Board held on
February 17, 2000.
Maureen
Marché