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4/25/2023 Item Appeal of Citation 25409, Ferris
43 PM To:CityClerk; Maggio, Rodger; Mezzapesa, John Subject:Evidence Submission for April 25th, 2023 meeting of the Construction Board of Appeals Attachments:Position Paper.pdf; Response.pdf This message is from an External Source. Use caution when deciding to open attachments, click links, or respond. ________________________________ Hello, I've attached a position paper and response to our appeal of Citation 25409 to this email. Additional supporting documentation was too large to attach directly to this email, but can be downloaded at https://s3.us-west-1.amazonaws.com/www.squaredealonline.com/FifthEvidenceSubmission.zip Please respond to let me know you received it successfully. Thanks, Warren Ferris 1 1 Appeal of Citation 25409 City of San Luis Obispo Construction Board of Appeals Hearing Date: April 25, 2023 at 1:00 p.m. Position Paper Submitted by Appellant PLEASE TAKE NOTICE that the Appellant hereby requests that the Construction Board of Appeals prepare a Statement of Findings and Facts and a transcript of the above-entitled hearing suitable for Court review of this matter upon completion and decision on this Appeal. Authority of Construction Board of Appeals: Formation of the Construction Board of Appeals is mandated under California Building Code Title 24 section 1.8.8. and established by the City of San Luis Obispo Municipal Code 1.24. Taken together, the Construction Board of Appeals has the authority to make findings, state the evidence upon which such findings are based, point out conflicts or errors in the Municipal Ordinances, and, as an Advisory Body to the City Council, recommend changes in the ordinances. Without such authority and the exercise of such authority, the Construction Board of Appeals would merely be a rubber stamp for citations issued by the City. Ferris Ditch: The ditch running through the Ferris Property located at 4080 Horizon Lane in San Luis Obispo is one of the last remnants of the Tank Farm constructed by Unocal that began in the early 1900’s and continued after the 1926 Tank Farm fire. This construction, including the Ferris Ditch, was the largest construction project in the world in its day. The Ferris Ditch begins with a headgate on the northerly end of the ditch. The headgate includes a concrete construction with 36 inch piping, and control valves that allow water to flow into the ditch from the tank farm or stop water from flowing into the ditch. Immediately north of the ditch are remnants of a settling pond. The ditch runs southerly about 360 feet across the Appellant’s property and empties onto neighbor property which was at the time of construction was owned by Unocal. The ditch is clearly and without dispute manmade in its origin. 2 Showing of Evidence Presented by Appellants: The Appellants have submitted over 550 pages of evidence and provided testimony, including that of a civil engineer, in prior hearings of the Construction Board of Appeals on this matter. The evidence overwhelmingly proves the following facts. 1. Human Construction: The ditch is a product of human construction which cannot be duplicated by nature. 2. Ephemeral Nature: The flow of water in the ditch is ephemeral. This means that water flows or stands in the ditch only when it rains. 3. Location and Existence of Ditch: The location and existence of the Ferris Ditch has been in its current location for over 100 years. At the time the Ferris Family bought the property San Luis Obispo County and the City both treated the ditch as a ditch. The county had issued permits to the predecessor in interest of the property allowing the ditch to be placed underground with appropriate construction. At no time prior to City Planning Statements in the last few years had it ever been implied that the ditch was part of a creek. 4. Location of Creeks: Maps and other documents, including those from the United States Geological Survey, dating back over 250 years show that there was no creek in the proximity of the Ferris Ditch. These documents show that natural drainage for the area ran primarily to the creeks from the east and west of the South Hills bypassing the Ferris Ditch by great distances. 5. No Riparian Habitat: There has never existed along the course of the Ferris Ditch any form of riparian habitat. There has never been a plant, animal, or other form of riparian habitat along the ditch. Nor does the ditch express or begin to express any of the historical, geological, soil morphology, or other characteristics of a creek. Legal Definitions: The law has defined the difference between a creek and a ditch in a tradition of decisions dating back hundreds of years beginning in England, then brought to America, and continuing to the present day. The United States Supreme Court clearly addresses these defined differences in Rapanos v. United States which was decided in 2006. A copy of this case was previously submitted to the Construction Board of Appeals as part of this Appeal. The Supreme Court tells us that the common usage and definition of things constitutes 3 their clear nature and that government is bound by such definitions. The Supreme Court tells us that a ditch is manmade and that a creek is made by the elements of nature. Definitions in City Ordinance: The prior city ordinance dealt with the ditch v. creek issue as follows at 17.158.010: Creek. A waterway or portion of waterway designated in the general plan as a creek. A drainage ditch, concrete swale, underground culvert, or storm drain (as indicated on the general plan) is not a creek. Creeks located outside the urban reserve line are as designated by the USGS 7.5 Minute series quadrangle maps or county data. (Ord. 1650 § 3 (Exh. B), 2018). This old ordinance seems to recognize the difference between ditches and creeks. The new ordinance fails to do so. Development of 4080 Horizon Lane: During the past year the Appellant submitted its application to the City of San Luis Obispo to start the process of getting permits and approvals to develop the property. After several months of processing by Community Development, the appellant was recently contacted. The process is meeting with resistance from the City. The Appellants have not received a cogent explanation so far, but we suspect that this issue of a ditch v. creek is at the heart of delays in the property development effort. Part of the proposal for development is to put the Ferris Ditch underground in an appropriate construction not unlike what was approved years ago by the County of San Luis Obispo. Proposed Findings: Among other action on the citations, Appellants hereby request that the Construction Board of Appeals do the following regarding the citations based on violation of creek-based ordinances: 1. Find that the Ferris ditch is a ditch and not a creek. 2. Revoke the citations issued that were based on creek ordinances. 3. Find that present or future citations for violations or applications to develop the property at 4080 Horizon Lane be processed applying ditch relevant ordinances for set-backs and other requirements and that creek relevant ordinances shall not apply. 4. Find that ordinances regarding ditches and not creeks apply to the property as a matter of fairness under the concept of grandfathering. Response to Administrative Citation 25409 Or: The Case of the Creek that Never Was History of the Drainage Ditch Brief Overview The drainage ditch was constructed as part of a water detention and drainage system by Union Oil of California, intended to stop the spread of oil in the event of a leak during heavy rains. The remains of concrete channels, valves (1) and other apparatus (2) remain on the property today. At the time of our acquisition of the property, the drainage ditch was filled with fragments of steel and concrete from the partially demolished water detention and drainage facility, with additional debris covered with a shallow layer of soil scattered through the remainder of the property. We obtained a permit with the County of San Luis Obispo (3) for the grading and leveling of the lot, as well as the encapsulation of the entire 330’ length of the drainage ditch in a temporary pipe, until plans for a proper culvert could be submitted. The temporary pipe portion of the permit (along with temporary power and a couple of other provisions) were not acted upon, in favor of plans submitted to the County for the installation of a permanent culvert (DRC2005-00243) (4). DRC2005-00243 was later invalidated by the annexation of the Horizon Lane industrial area by the City, over the objections of local industrial property owners, by redrafting the annexation to include a large, non-contiguous residential area. Previous Permits James Whitley – Industrial Condominiums James Whitley’s attempt to develop the began with an approved Development Plan (D850529:1) on January 9, 1986 (5 p. 3) for the construction of Industrial Condominiums, which was extended three times before expiring without significant headway being made. We were unable to locate copies of these plans or permits related to them, given the nature of the development and the intended location of the structures, it could not have proceeded without provision for a culvert. Whitley restarted his project with Construction Permit 56848 (6 p. 2), issued in 1989. This permit covered the installation of a 72” x 44” drainage culvert to replace the existing drainage ditch, as well as grading, installation of water mains and removal of fill, likely in preparation for his subsequently submitted plans industrial condominiums. On September 14th, 1992 Whitley received a Negative Declaration of environmental impact for his proposed industrial condominiums (7 p. 13). The staff report described vegetation on the site as “Grasses; forbs; mostly barren” (7 p. 13). On January 14th, 1993, the project gets its final go ahead from the County Planning Commission where the environmental impact negative declaration, tract map and development plan were formally approved. (5) Ferris Trust Permits In late 2000, early 2001 the Ferris Trust was granted a lot line adjustment linearizing the eastern portion of the lot, and on July 20th, 2001 the Lot Line Adjustment was granted (COAL 00- 150) (8). The CEQA environment description form described the vegetation on the site as “GRASSES & WEEDS” (8 p. 7). Later that year, the Ferris Trust sought a permit for the installation of 330’ of temporary drainage pipe from existing concrete gate valve to exiting road crossing culvert, grading of the lot, installation of temporary power and fencing, and on October 16th, 2002 the permit was granted (3). Over the next few years work proceeded on grading the property, removing multiple dump truck loads of broken up concrete and various industrial debris from the property and drainage ditch. Work proceeded slowly as it was performed primarily by Richard Ferris and Raymond Hanson on weekends so as to keep costs low. In lieu of installation of the temporary drainage pipe, plans were submitted to the County of San Luis Obispo for the construction of a permanent culvert (DRC2005-00243) in late 2005 (4 p. 3). Invention of the Creek In 2005, the City began to speak of annexing the properties in the Tank Farm area, and it is in one of the drafts of the “PH-1 Adoption of the Airport Area Specific Plan” that the first reference to a “Tank Farm Creek” was mentioned, I’ve copied below Tank Farm Creek is the name applied to the cluster of drainages that traverse the western portion of the Unocal property. … (9 p. 4) It notably contains no evidence or justification supporting the attempted reclassification of the drainage system. After Richard Ferris’s 2005 objection to the language this section was removed and does not appear in the final draft of PH-1. (10) The term “Tank Farm Creek” would continue to be used elsewhere however, and no finding or justification has been provided. Annexation In 2006, the City spoke with owners of property in the Horizon Lane industrial district, who largely responded negatively to the prospect of annexation. In response to this, the annexation was amended to include a large swath of noncontiguous land intended for residential development (10), reducing the voting share of the Horizon Lane/Suburban Road industrial district sufficiently to render their concerns and consent irrelevant. Despite both our objections and verbal reassurances to the contrary (11 p. 2), annexation of our property went forward, and both our outstanding permit for a temporary drainage pipe and the in-progress plans with the County were invalidated (4 p. 3). Maintenance of the Drainage Ditch The invalidation of both the County approved plans for the temporary drainage pipe and the in-progress permit for the installation of a culvert left the ditch in state that was vulnerable to landslides that risked blocking drainage from the Tank Farm property in the event of a heavy rain. Acting in accordance with the US Army Corp of Engineers published guidance on the permitting required for the maintenance of drainage ditches (12), work was performed to stabilize the sides of the ditch, including additional compaction and the installation of interlocking masonry blocks to line and reinforce the sides. The 2017 Citation In 2017, the City of San Luis Obispo issued a citation identical in substance to this 2020 citation. After a product meeting with the representatives of the Fish and Wildlife commission, and a compromise with the City of San Luis Obispo to lower the height of the masonry blocking, this issue was resolved… until the same issue was cited a second time, a little more than four years later. San Luis Municipal Code Chapter 12.23 12.23.020 A. Creeks including San Luis Obispo Creek and its tributaries and any other “Water of the United States”, as defined in 40 CFR 122.2… “Tank Farm Creek” The attempt to characterize the Union Oil constructed drainage ditch as a creek is without merit. It ignores the prevailing definition of creeks as natural, regularly flowing formations. It ignores findings from previously submitted and accepted environmental reports. It ignores previously approved permits acknowledging it as a drainage ditch and approving the installation of culverts of various types. It ignores the history of the water detention and drainage facility on the property. It ignores all of this, all in an attempt to “prettify” a partially decommissioned petroleum storage facility. The City of San Luis Obispo’s own commissioned report “Chevron Tank Farm FEIR” characterizes it thusly “Tank Farm Creek, itself is largely an artificial ditch…” (13 p. 21). In the “Overview” section they make a point to mention that the unnamed tributary is “locally known as “Tank Farm Creek”” rather than arriving at any determination themselves (13 p. 5). It is worth noting that the much of the work done in the report needs to be reconsidered in light of later rulings by the Supreme Court and the formally adopted 2023 Revised Definition of the “Waters of the United States” (14) Water(s) of the United States - 2019 Notably excluded from the definition ‘Water of the United States’ are “Ephemeral features”, which are defined as in 120.2.3.iii “surface water flowing or pooling only in direct response to precipitation” (15), which is an accurate description of this (and any) drainage ditch. According the Supreme Court Decision in Rapanos V. United States (2007) and the EPA’s own 2019 guidelines for determining ‘Waters of the United States’ (14) …the ordinary meaning of the term ‘‘waters’’ does not include areas that are dry most of the year, and which may occasionally contain ‘‘transitory puddles or ephemeral flows of water.’’ See Rapanos, 547 U.S. at 733 The 2019 revised guidelines are even more explicit in the exclusion of drainage ditches of the sort at Horizon Lane. The drainage ditch which is dry through the overwhelming majority of the year - flowing only in direct response to rainfall, and only for short periods of time. Water(s) of the United States – 2023 There are five standards for WOTUS in 2023: (a)(1): Traditional Navigable Waters, Territorial Seas and Interstate Waters – Not Applicable (a)(2): Impoundments of (a)(1) waters – Not Applicable (a)(3): Tributaries of Paragraph (a)(1) where they meet the relatively permanent standard or significant nexus standard – Not Applicable (a)(4): Wetlands adjacent to (a)(1), with a continuous surface connection to relatively permanent (a)(2) or (a)(3), wetlands adjacent to (a)(2) when they meet the significant nexus standard – Not Applicable (a)(5): Waters meeting the relatively permanent or significant nexus standard – The ditch is neither “relatively permanent” nor a “significant nexus” of any jurisdictional waters of the united states The Ditch Was Never A Creek Here is a list of documents and photographs generated by various governmental agencies which contradict the City’s claim that a creek exists on our property: Every USGS topographical map from 1897 - 2018: No USGS before the City’s most recent inaccurate maps were sent to the USGS indicates a creek or other waterway crossing our property (see the section below or the included maps). Surveyor General’s Office of California: Surveys conducted on behalf the Surveyor General in the late 1800s do not show a creek or other waterway crossing our property (see below). The County of San Luis Obispo – Public Works Department: The County of San Luis Obispo map of waterways does not indicate a waterway on our property (see below). The County of San Luis Obispo – Department of Planning and Building: The County of San Luis Obispo Department of Planning and Building has repeatedly issued permits, both Construction and Land Use, authorizing modifications of the waterway in which they describe it as a drainage ditch. (See below and attached). The County summary of the Land Use permit even offers the following description of the purpose of the permit: “OPEN DRAINAGE DITCH TO CULVERT” California Regional Water Quality Control Board – Central Coast Region: None of the following show any waterway crossing our property: 1996 hydrologic survey, the “CA Map of All Names Streams and Lakes” map, or the “Fully Appropriated Stream Systems” map (nor any other map or documentation I can find). Various Aerial Surveys: Aerial surveys conducted by various agencies documenting the extent of the water detention system surrounding the Tank Farm property, including on our own Horizon Lane property, none of which show a riparian corridor or natural creek crossing our property. Given the property’s documented history, there can be little doubt to its prior legal or actual status as a drainage ditch. This would mean that the City’s assertion that it is a creek constitutes a change in its legal status, and not a trivial one. As a drainage ditch, most of the property can be put to productive use. As a creek, a forty- to fifty-foot-wide diagonal section of our property becomes unusable, a third of our property becomes inaccessible. The over portion we can access will be too small to finance the sewer and water extensions that the City would require for permanent development, making productive use of the remainder difficult to impossible. In short, this change in status would constitute a taking under the Fifth Amendment . The City’s failure to follow any documentable or justifiable due process and failure to offer compensation would constitute a violation of the Fifth Amendment. United States Geological Survey / Surveyor General’s Office No map prior to the 2021 map, updated with sources provided by the City, contains any reference to a stream or naturally occurring waterway on our property. I’ve included four examples from more than a hundred years of mapping below, additional maps included with this evidence submission. A blue polygon was added to indicate the boundaries of our property . December 12th, 1875 Map from Surveyor General’s Office 1952 Topographical Map - USGS 1897 Topographical Map - USGS 2018 Topographical Map - USGS County of San Luis Obispo County of Public Works – Waterways No waterway indicated crossing our property in the County’s map of waterways, the original map is available at the link below. https://gis.slocounty.ca.gov/Html5Viewer/Index.html?configBase=/Geocortex/Essentials/REST/sites/PW_Public/viewers /PW_Viewer/virtualdirectory/Resources/Config/Default&layerTheme=1 County Construction Permit 56848 Construction permit issued September 18, 1989 for grading and installation of a 72”x44” Culvert From Pages from 58647----850-0001D.pdf included with this submission Land Use Permit We were issued a permit in 2002 for grading the property and converting the open drainage ditch to a drainage pipe. From D020086S.pdf (Open Drainage Ditch to Culvert) From Parcel History - 053-258-017.pdf California Regional Water Quality Control Board – Central Coast Regional From San Luis Obispo Creek Watershed Hydrologic Survey, Page 43. (Property indicated in blue) California Regional Water Quality Control Board From the California Regional Water Quality Control Board map “All CA Named Streams and Lakes” available at https://gispublic.waterboards.ca.gov/portal/apps/mapviewer/index.html?layers=9ca35044184e48f28ae4a8586d65b8d4 California Regional Water Quality Control Board From the California Regional Water Quality Control Board map “Fully Appropriated Stream Systems” available at https://gispublic.waterboards.ca.gov/portal/home/webscene/viewer.html?layers=e6789cd25b694c2a9ace0d80b8098b 43 Aerial Surveys Property outline indicated with a blue polygon. I’ve only included one, but additional aerial surveys are available in the supplemental documentation. You can see the obvious signs that this is a man made drainage, from the seperation pond and headwall in the blue polygon, to the well defined and maintaned drainage channels made from the sort of angles people make, and nature does not. Summary Multiple government agencies have affirmed, via Environmental Impact Declarations, Planning Commission Resolutions and Construction Permits that the ditch running through Horizon Lane is, in point of fact, a ditch. Our reinforcement of the drainage ditch was not only allowable by the rules published by the US Army Corps of Engineers, but was required to safe guard drainage of the Tank Farm area against flooding during heavy rains. And by the City’s own FEIR report, the Section 120.2.3.iii of the CWA and the EPA’s own 2021 rule making, the ditch running through Horizon Lane is not subject to any special regulatory treatment. References 1. Union Oil Detention System - Valve Assembly. San Luis Obispo : 2021. 2. Union Oil Detention System - Winches and Concrete Wall. San Luis Obispo : 2021. 3. County of San Luis Obispo. D020086S - Drainage Pipe, Grading. San Luis Obispo : s.n., 2002. 4. —. Parcel History. Parcel History. San Luis Obispo : s.n., 2021. 5. —. D910080D - Development Plan and Vesting Tentatitive Tract Map. San Luis Obispo, California, United States : s.n., January 14, 1993. 6. —. Pages from 56847 - 850-0001D. San Luis Obispo : s.n., 1986-1989. 7. —. S900008T - Miscelleanous Paperwork Related to Tract Map 2035 (Whitley). San Luis Obispo, California, United States : s.n., January 14, 1993. 8. —. COAL 00-0150. 2001. 9. Ferris, Richard. Letter Dated 2005 - Excerpt from final draft of Adoption of the Airport Area Specific Plan. San Luis Obispo : s.n., 2005. 10. City of San Luis Obispo. PH1 Annexation of 620 Acres... San Luis Obispo : s.n., 2007. 11. Ferris, Richard. Letter Dated April 26th 2007. San Luis Obispo : s.n., 2007. 12. US Army Corps of Engineers. Maintenance Exemption Summary. Sacramento : US Army Corp of Engineers, 2005. 13. Padre & Associates. Chevron Tank Farm FEIR Appendix. San Luis Obispo : s.n., 2008. 14. Federal Register. Revised Definition of "Waters of the United States". 2019. 15. Clean Water Act - 120.2 Definitions. l .1 ..! J ..J .j I I i., 1 I ,.l ...J , ."oJ San Luis Obispo Creek Watershed Hydrologic Survey Prepared for: California Regional Water Quality Control Board Central Coast Region Contract No.4-106-253-0 By: The Land Conservancy of San Luis Obispo County Funding Provided By: United States Environmental Protection Agency 319(h)Grant No.3940-001-001 May 1996 l •'1 ·i ! ! Table of Contents Executive Summary.4 I Introduction Purpose of this study 5 Relationship with other studies of San Luis Obispo Creek 5 IT Organization of this report 6 ITI Overview of the San Luis Obispo Creek Watershed Location and setting 7 General characteristics Geology 8 Hydrology 8 Soils and Vegetation 10 Landuse 12 Land ownership...................15 Watershed resources and beneficial uses..........16 Watershed problems.......................................................................19 IV Overview of sub-watersheds Upper Stenner Creek 24 Upper San Luis Obispo Creek 27 Brizziolari Creek 30 Reservoir Canyon 32 North SLO City 34 Lower Stenner Creek 37 Laguna Lake 39 East Fork SLO Creek 41 Prefumo Creek 44 Froom Creek 47 Davenport Creek 49 Lower San Luis Obispo Creek.53 San Migelito (See Canyon)Creek 56 Harford Canyon 58 V Main Stem Evaluation 63-103 VI Hydrologic Modelling 104-110 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 List of Figures Study Location 7 Generalized Soil Types (SCS)..10 General Vegetation Types ;11 Land Use :12 Parcel Sizes..............................16 Sub-watershed Delineations.........................................................23 Upper Stenner Creek Survey Locations..25 Upper San Luis Obispo Creek Survey Loactions ,28 Brizziolari Creek Survey Locations.................31 Reservoir Canyon Survey Locations.................................................................33- North SLO-City Survey Locations 35 Lower Stenner Creek Survey Locations ;38 Laguna Lake Survey Locations..........40 East Fork Survey Locations ;43 Prefumo Creek Survey Locations 45 Froom Creek Sub-Watershed :48 Davenport Creek Survey Locations.......................................................................51 Lower SLO Creek Survey Locations..54 See Canyon Survey Locations..............................57 Harford Canyon Survey Locations........................................................................59 Sub-watershed Erosion Potential.62 2.1 Main Stem Reach Delineations..............................................................................64 2.2 Reach 1....67 2.3 Reach 2 :...............................71 2.4 Reach 3.................................................................................................................74 2.5 Reach 4................................................................................................................77 2.6 Reach 5................................................................................................................79 2.7 Reach 6 81 2.8 Reach 7 84 2.9 Reach 8.................................................................................................................87 2.10 Reach 9 90 2.11 Reach 10 93 2.12 Reach 11 95 2.13 Reach 12 97 2.14 Reach 13 99 2.15 Reach 14 101 3.1 Hydrologic Model Schematic 105 3.1.1 10 yr.,6-hour Storm Hydrograph (SLO Creek @ Prefumo Confluence)109 3.1.2 10 yr.,6-hour Storm Hydrograph (SLO Creek@ San Miguelito Confluence)109 3.2.1 10 yr.,24 hour Storm Hydrograph (SLO Creek @ Prefumo Confluence)110 3.2.2 10 yr.,24 hour Storm Hydrograph (SLO Creek@ San Miguelito Confluence)110 ",.' EXECUTIVE SUMMARY The purpose of this study is to assist the Land Conservancy of San Luis Obispo County to identify restoration opportunities along San Luis Obispo Creek and its tributaries in an effort to enhance water quality.Previous studies have addressed a variety of water quality problems within the San Luis Obispo Creek watershed.This report addres'ses a number of these issues but specifically targets bank erosion and subsequent sedimentation,which adversely affect the ability of the Creek to serve as a viable fishery.The restoration pursued by the Land Conservancy is focused on the sedimentation problem,but will also address any other problems encountered on specific sites. The Land Conservancy has completed a number of studies related to the Creek and is continuing to undertake studies on issues of importance to riparian restoration.This study on the hydrology of the watershed was considered critical to a broader understanding of the dynamics within the watershed,and of how one restoration project will affect other sections of the Creek. This study provides a general characterization of the watershed as a whole,and provides a detailed evaluation of the main stem of the Creek,which faces the most immediate needs for restoration. The Land Conservancy also intends this study to provide a framework for more detailed studies within each sub-watershed and each reach of the main stem of the Creek.It provides the overall context within which future projects may be incorporated.Each of the sub-watersheds is distinct and has it's own dynamics,so one solution for stream bank stabilization will not be universally applicable. While this study concluded that erosion and sedimentation are problems throughout the entire watershed,the severity and main causes of erosion are variable.In most cases,however, erosion was caused by activities adjacent to the stream banks. Upstream of San Luis Obispo,erosion of banks is occurring due to the removal of riparian vegetation by cattle and flood control crews.Within the City of San Luis Obispo,and immediately downstream,erosion is resulting from high flow velocities generated by channel constriction (urban encroachment),bank armoring,and vegetation removal. In addition to the direct sediment loading from San Luis Obispo Creek's banks,sediment is being delivered to the main stem from several of the tributary sub-watersheds.Throughout the East Fork and Davenport Creek sub-watersheds,erosion is resulting from removal of riparian vegetation for agricultural purposes,and by cattle grazing in the riparian corridors.Significant sediment loads are also being delivered from the Froom Creek watershed,where extensive grading has exposed loose soil.Finally,the upper Stenner Creek watershed,due to extensive riparian grazing and the resulting lack of vegetation,is contributing significant sediment loads. These results point to land use management as a way lessen future impacts on riparian conditions in the watershed,and bank revegetation to rehabilitate those areas already damaged. This report identifies restoration opportunities throughout the watershed. 4 San Luis Obispo Creek Watershed -Hydrology ...~.:. I.INTRODUCTION A.PURPOSE OF THIS STUDY The purpose of this study is to identify restoration and water quality enhancement opportunities in the San Luis Obispo Creek watershed.It presents a comprehensive characterization of the entire watershed in reference to vegetation,soils,land use,ownership, and riparian corridor conditions.It also describes how these watershed characteristics can be opportunities or constraints to the restoration program. This study is also being used to identify specific restoration sites within the watershed so projects can be planned and implemented.The information in this study will be used to plan enhancement projects that will not adversely impact watershed areas downstream. B.BACKGROUND TO OTHER STUDIES IN SAN lUIS OBISPO CREEK WATERSHED The Land Conservancy of San Luis Obispo County and several public agencies have conducted a number of studies in the watershed over the past few years.This hydrologic study complements these other studies.The following is a brief summary of the key studies. 1.land Conservancy·San luis Obispo Creek Restoration Plan The current study expands the scope of The Land Conservancy's previous study on San Luis Obispo Creek entitled "San Luis Obispo Creek Restoration Plan",which was completed in January,1988.This report identified land use management objectives based on each of the Creek's beneficial uses.It also includes an inventory and ranking of natural and aesthetic resources along the riparian corridors of the main stem of the Creek and the main tributaries. The current study expands the scope to include all lands within the watershed. 2.land Conservancy I Central Coast Salmon Enhancement·Steel head Trout Habitat Inventory &Investigation A fisheries habitat typing study has been undertaken at the same time as the current study.It presents a comprehensive inventory and characterization of fish habitat types and conditions throughout the main stem of San Luis Obispo Creek.Additional information is presented which provides an historic perspective on fish stocking and water flows.It will be used in conjunction with the current study to evaluate fish habitat restoration and enhancement needs within the watershed. San Luis Obispo Creek Watershed -Hydrology 5 3.City of San Luis Obispo -Water Re-Use Project EIR The City of San Luis Obispo recently released an Environmental Impact Report for their Water Re-Use Project.Included in this document are a biological assessment and inventory of the lower San Luis Obispo Creek area,a hydrology and groundwater report, and fish habitat survey. This study is limited to the section of the Creek south of the City which will be affected by the project plans. 4.City of San Luis Obispo -Waterways Inventory The City of San Luis Obispo has surveyed all of the drainages within the city for the purposes of flood control analysis.The inventory describes vegetation condition, encroachment level,debris types,culvert and bank reinforcement locations,and possible pollution sources.It also includes pictures of these areas. 5.California Regional Water Quality Control Boardl Coastal Resources Institute -TMDI.Study The California Regional Water Quality Control Board,in May,1994,published a study by Cal Poly's Coastal Resources Institute (CRI)entitled ''Nutrient Objectives and Best Management Practices for San Luis Obispo Creek".This study addressed nutrient loading in the watershed.Issues addressed include watershed features,current land use practices and problems,algal growth,and associated mitigation measures.Specific best management practices (BMPs)were recommended throughout the watershed. II.METHODOLOGY &ORGANIZATION OF THIS REPORT This study was conducted at two levels of detail.First,a general reconnaissance survey of the entire watershed and its sub-watersheds was conducted.Second,a detailed study was conducted i along the main stem of the Creek from the Cuesta Pass to the Ocean.,. The remainder of this study is organized into four parts: 1.An overview of the watershed and its sub-watersheds. 2.Description each of the sub-watersheds. 3.Detailed analysis of the main stem of San Luis Obispo Creek. 4.A summary ofa hydrologic model of the watershed. 6 San Luis Obispo Creek Watershed -Hydrology III.OVERVIEW OF THE WATERSHED A.LOCATION AND SETTING San Luis Obispo County Study Area Pacific Ocean .<;-. Fig.1.1 -Sudy Location The San Luis Obispo Creek watershed drains roughly 84 square miles of land surrounding the City of San Luis Obispo,California and carries the drainage 18 miles to the Pacific Ocean at Avila Beach.The headwaters begin as flow from the Santa Lucia Range and spill onto a small sparsely developed plateau before descending into the City of San Luis Obispo and the Pacific Ocean at Avila Beach. It is within the City that San Luis Obispo Creek is joined by Stenner Creek,which also carries the drainage of Brizziolari Creek.These tributaries also begin in the Santa Lucia Range and flow through the California Polytechnic State University.These creeks flow through agricultural land surrounding the University and continue through urbanized areas of San Luis Obispo. South of the City the Creek flows down a narrow agricultural valley,through a gap in the Irish Hills,and out to the ocean at Avila Beach.In this lower stretch the Creek is joined by the East Fork of San Luis Obispo Creek (also called Acacia Creek)and Davenport Creek.These tributaries begin along a small range extending southeast of San Luis Obispo and flow,through a mix of grasslands,vineyards,agricultural areas,and the industrial airport area south of the City. Prefumo Creek,which drains Laguna Lake,the southern Los Osos Valley,and the north slopes of the Irish Hills also joins the main stem south of the City.Finally,a series of minor tributaries, the largest being San Miguelito (See Canyon)Creek,join in the lower sections of the main stem. San Luis Obispo Creek Watershed -Hydrology 7 B.GENERAL DESCRIPTION AND CHARACTERIZATION 1.Geology The first step in understanding the watershed is to look at the nature of the geologic formations that underlie it.The following overview was obtained through an interview with Dr.David Chipping.The formations beneath the surface of the land are composed of a mixture of volcanic,·sedimentary,and metamorphic materials crossed by the Los Osos fault zone.The form of the land when this drainage was in its formative stages probably existed on a uniform sloping terrace extending from the Cuesta Ridge to the ocean.As the coast uplifted,the Creek maintained enough energy to cut through the harder formations along and west of the Los Osos fault. The secondary tributaries flowing out of the Irish Hills and into the Edna Valley did not have enough energy to cut through the harder rock and turned north or south to drain into the main stem of the Creek.The geology along the west side of the Edna Valley i,s complex.For not only is there a fault line but the earth has also been uplifting at the same time.The drainage pattern that results from these geologic forces is a combination of the dendritic drainage pattern in the foothills,combined with a trellis like pattern in the flat valleys.When the Creek cuts through the Los Osos fault (near the northbound S.Higuera freeway on-ramp),it enters what is almost a new sub-watershed of its own.The nature of these sub-watersheds will be discussed in greater detail below. Because the overall lay of the land gradually sloped to the west,as the Edna and Laguna Lake area began to fill with sediment.The layers of sediment were laid down in a large wedge with the thicker side next to Country Club estates.This is where many wells are located.It has been suggested that prior to the development of this area,the ground water in these soils built up and came to the surface where San Luis Obispo Creek crosses the Los Osos Fault.This could have supplied a year-round flow of water in the lower Creek. In summary,there are two main types of sub-watersheds within the overall watershed.There are foothill watersheds that bring water down from the hills into the flat valleys,and the north and south running watersheds within Los Osos and Edna Valleys that transport water to the main stem where it cuts through the narrows at the Los Osos fault.At this point,the Creek is cutting through what may still be an uplifting zone,within which there are smaller scale zones of cutting and deposition. 2.Hydrology Hydrology,the study of water flow through a watershed,is a special discipline.The hydrologic research,fieldwork,and modelling were completed by Dr.Brian Dietterick,and Masters candidates Chris Rose and Mark Angelo.Their input was critical to this study. 8 San Luis Obispo Creek Watershed -Hydrology The phrase that has been used to characterize the hydrologic nature of this watershed is that it is "flashy"with regards to its response to rainfall events.This means that the flow of water moves quickly through the system yielding high peak flows.This is partly due to the watershed's high relief.It descends almost 2,600 feet from Cuesta Ridge to sea level in less than 18 miles.The other contributor is the watershed's urban nature,and the proliferation of impervious surfaces.These surfaces drain quickly to the Creek via storm drains. The other essential characteristic of the watershed is its vulnerability to very wide ranges in rainfall.As a coastal watershed,it is subjected to heavy costal storms.In addition,the high relief creates differences in rainfall over short distances.A storm that might drop I"in town could easily drop from 2"to 4"on the ridge. All of these factors create a watershed that has high potential energy both on the slopes,in the tributaries,and in the main stem of San Luis Obispo Creek.The high energy has resulted in problems with erosion,sedimentation,and flooding. The problems now being experienced within and near the City of San Luis Obispo are partly created by the dynamics of the watershed itself.The other half of the problem has been a number of urban projects constructed over the years.Highway I0 I,for example,cuts through the watershed and along the Creek from near the Ocean to the Cuesta Ridge,and has altered historic stream routes.The highway has also confined the Creek's flood plain,which used to extend into a larger agricultural area just west of town,to a narrower section.This has resulted in more destructive,faster moving flood waters. The vegetation that was historically associated with the Creek below town,as it entered the flood plain,is no longer there.Historic vegetation removal,combined with structural changes within the City,have left an unstable channel which is vulnerable to more frequent flooding.The water now moves faster and has cut the river down to bed rock in many places, and created high banks. One of the first and most important questions regarding restoration is;Why is damage ,occurring?Another important decision is whether or not it is necessary to work on the upstream reaches before the downstream reaches.As a result of the hydrologic study and observations of the team lead by Dr.Dietterick,it was determined that most problems appear to arise from the immediate riparian land use condition,and that it is important to address erosion and sedimentation wherever they occur in the watershed. The condition of the banks has a direct connection to the riparian ecosystem and the morphology of the stream.The erosion of banks is contributing tons of sediment of all different sizes,not just the fine materials.Observations within the stream have indicated that sediments are largely from the adjacent banks.Very little of the recently deposited,coarse- sized,sediments associated with upstream formations are found in the lower reaches. San Luis Obispo Creek Watershed -Hydrology 9 Erosion from agricultural fields is also a contributor to sedimentation,but the contribution from these sources has not been documented as clearly as stream bank erosion. Solving the problems of bank erosion will require careful consideration of a number of in- stream variables. Issues such as the flow of water,quantity,velocity,channel capacity,and conditions within the flow line will all have to be considered.A discussion of these issues is contained throughout the report where the varied conditions presented by the sub-watersheds are discussed. 3.Soils and Vegetation Variations in soils and vegetation throughout the watershed are important determinants of erosion potential.Figure 1.2 shows generalized soil types in the watershed. San Luis Obispo Creek Watershed Generall:E8d Soli Types f]]Alluvial Fans and Plains IlIlI Foothill;and TCIl'llCCS ~Hills and Mounlains N A Paci~ic ocean Figure 1.2 -Generalized Soi/1jJpes (SCS) City of San Luis obispo ••~.'81.0 Cn:eIc WIllt:rWd Boundazy ~.. 10 Most of the watershed is laden with soil types typical of hill and mountain terrain.These are generally on moderatt~to steep slopes in the higher elevations and are well to excessively drained.They are primarily used for open range,dryland farming,and scattered residential development.These lands are mostly at the headwaters of the watershed tributaries. San Luis Obispo Creek Watershed -Hydrology ·~ i i The map also illustrates how the tributaries flow from these mountainous areas through a swath of alluvial soils found in the flatter areas and basins.These soils are generally deeper and more poorly drained.These alluvial soils are good for irrigated row crops and dryland fanning,and are highly erosive.Urban development is also taking place on these soils due to the flat terrain. Bank erosion is a particular problem in areas with alluvial soils.The sandier of these soils have a very low critical bank height,which means they cannot support high vertical banks. Following saturation from high flows,these soils dry and collapse into the channel.This places sediment directly into the Creek. The steepest lands are dominated by chaparral and chaparral woodland.The flatter valley lands are primary grasslands and grass woodlands.Land use in some of these areas has resulted in alteration of the natural vegetation types.Much of the grassland has been developed and used for agriculture.Figure 1.3 shows generalized natural vegetation types within the watershed. San Luis Obispo Creek Waters~ed Natural Vegetation Types Vegetation Types \TI)Agriculture [ill]...Grassland aJ Grass Woodland ~ChappaJaI ~cbapparaJ Woodland ~Sage Woodland g Hardwoods N !m Barren 1:..:'. Figure 1.3 -General Vegetation 1Ypes San Luis Obispo Creek Watershed -Hydrology 11 12 4.LAND USE Land use is one of the most important factors to consider in watershed enhancement and management.Differing land uses may have dramatically different effects on the land.Even variations within a single category can be significant.This section describes land uses which are planned by the COlmty of San Luis Obispo.Actual land use may vary,and will be discussed in more detail for each sub-watershed. The Land Use Element of the San Luis Obispo County General Plan describes planned land uses within the San Luis Obispo Creek Watershed.The County General Plan is updated periodically,and generally represents a ten year period.Figure 1.4 illustrates these planning designations.The center of the watershed is dominated by urban development.Much of the surrounding area is zoned in agriculture,open space,and rural lands,which are generally less intensive uses.Scattered residential zones describe areas of variable density. San Luis Obispo Creek Watershed Planned Land Use Land Use ~Agriculture".,,".:\,-.,,,Rural Lands F,'~~~ ~Open Space 1..• ~Residential Rural ~Residential Suburban II Public FacilitiesN i ~Urban Figure 1.4 -Land Use San Luis Obispo Creek Watershed -Hydrology ..., 1 1 8.Agriculture Agricultural land encircles the City of San Luis Obispo and is prevalent throughout the watershed.Land zoned in agriculture is developed at low to very low densities.The minimum parcel size in land classified as agriculture can vary between 20 acres and 320 acres,depending on its soil and other factors included in the county's land use ordinance. The kinds of land uses that may be permitted on anyone parcel,however,are extremely broad.This reflects a rural county where mining,food processing facilities,and other related agricultural business activities are permitted in agricultural areas. The impacts of the agricultural operations on watershed quality can be very significant. In areas of intensive crop production,soil disturbance and riparian vegetation removal are common.These activities can lead directly to erosion,sedimentation,and transport of non-point source pollution.In areas dominated by livestock grazing,the primary problems are destruction of riparian corridors by livestock seeking water,and nutrient pollutiOI1.Large animals also compact soil in the riparian areas making natural revegetation more difficult.Agriculture is important to theiocaJ economy,however,and can be very protective of the Creek when sound land management practices are followed. The following photographs show two tilled agriculture operations.The first has resulted in destruction of the riparian corridor while the second shows a rich riparian corridor. While the land use is the same,it is clear that management practices differ. Riparian vegetation disappearing into agricultural field San Luis Obispo Creek Watershed -Hydrology 13 14 Healthy riparian corridor through agricultural area The agriculture category designation also reflects larger parcel sizes,which represent valuable restoration opportunities.Since agricultural lands are where simple and inexpensive changes can lead to significant improvement over fairly large areas,farmers and ranchers are crucial allies in watershed enhancement. b.Rural Lands The rural lands category identifies areas where rural residences are the main uses. Minimum lot sizes range from 5 to 15 acres in size.Small agricultural operations area allowed here,but not commercial agriculture.Large parcel sizes provide good restoration opportunities. Lands with this designation are found in the Irish Hills area along Prefumo and Sycamore Creeks and northwest of San Luis Obispo.While the same effects can occur in this category as in agriculture,they would generally be more limited in area and intensity. c.Open Space Open space designation is given to land that is to be protected in a natural state.These lands are in public fee ownership or have open space easements on them.Land use should not be a significant factor in watershed impacts from these lands,although management and effective stewardship may still be important over time. d.Residential Ruual These are low density residential areas where some agriculture is allowed,but they are clearly a secondary use.Parcel sizes are generally smaller (5 to 20 ac.)than those in agriculture or rural lands.These generally have poorer agricultural soils and lack San Luis Obispo Creek Watershed -Hydrology significant environmental resources.Due to the low density and limited agricultural capabilities,watershed impacts are limited in these areas.Since livestock and agriculture are allowed in this category,there is a still potential for cumulative effects in areas near or adjacent to creeks.Most of the lands in this category are in See Canyon and along parts of Davenport Creek e.Residential Suburban The residential suburban category lands in the San Luis Obispo Creek Watershed are found mostly along the urban edge of San Luis Obispo.The main exception is the Squire Canyon area.These lands are similar to residential rural concerning usage,but the density is somewhat higher.Parcel sizes range from 1 to 5 acres in this designation. f.Public Facilities Public facilities designation is for land owned by a public agency and used for facilities meeting public needs.There is very little land in the watershed with this designation,so impacts to the greater watershed from these lands are minimal. g.Urban The urban designation is for lands within an existing Urban Reserve Line.About l/5th of the land within the watershed is considered urban.These areas generally have small lot sizes,and the complicated ownership patterns can be a challenge for restoration. These designations are very general,and actual land use may take many forms.In the analysis of each sub-watershed,the actual land uses will be described in more detail. 5.Land Ownership Land ownership is important in voluntary watershed protection programs because owners have the most control over land use and management practices.Regions with large ownerships represent the best opportunities for watershed protection andenhancement because larger areas can be affected with the cooperation of fewer people.Areas with smaller lots,conversely,represent restoration challenges.Cooperation with multiple owners, while possible,adds complexity to any enhancement project.In addition,small lots along streams often do not have the space needed for restoration work while maintaining another use. Lot sizes generally increase with distance from the city.Ownership of the land within the watershed (but outside of the city)is divided into approximately 850 parcels owned by roughly 450 people (Fig.1.5).While most of this land is privately owned,there are significant public holdings within the watershed.Most notable is the California Polytechnic State University (Cal Poly).With extensive holdings,a mix of urbanized and agricultural lands,and two tributary streams,Cal Poly is a major player in the San Luis Obispo Creek Watershed. San Luis Obispo Creek Watershed -Hydrology 15 Figure J.5.-Lot sizes C.WATERSHED RESOURCES AND BENEFICIAL USES The Creek and its tributaries have long been significant resources to the community,and habitat for many species of plants,animals and fish.They also provide migration corridors for wildlife,recreational opportunities,a water supply for agriculture,and ground water recharge. 1.Fisheries and Aquatic Species Habitat Species of concern along the creeks in this watershed include the western pond turtle,red- legged frog,and two-~;triped garter snake.San Luis Obispo Creek is also one of the southernmost habitats for the southern steelhead trout.In addition,king salmon have been known to travel upstrtlam from a breeding facility in Port San Luis to spawn in the creek. More information on fish habitat conditions can be found in The Land Conservancy's recent report entitled "San Luis Obispo Creek Steelhead Trout Habitat Inventory and Investigation, 1996". 16 San Luis Obispo Creek Watershed -Hydrology "1 I 2.Wildlife Habitat Numerous mammals and bird species frequent the creek banks in this watershed.A 1986 U.S.Fish &Wildlife study found over 75 different species during a brief period.Many of the species found are considered to have special status,meaning that they are protected by the Federal or State governments,or are considered rare enough to be considered for protection. Notable species include birds of prey such as the cooper's,sharp-shinned,and red shouldered hawks,kingfishers,and blue herons.Additional special status birds include the western bluebird and the yellow warbler.Mammals found along the creeks include opossum, grey squirrel,ground squirrel,pocket gopher,raccoon,weasel,and pacific blacktail deer. Amphibians such as the pacific tree frog,bull frog,western fence lizard,and southern alligator lizard have also been observed. 3.Plants The San Luis Obispo Creek watershed is also home to a number of special status plant species.The following table lists these species. Common:Name ....Sciel'1llficName··. San Luis Obispo Star Tulip Calochortus obispoensis San Luis Obispo Dudleva Dudleva abramsii ssp.murina Brewer's Chorizanthe Chorizanthe breweri Chorm Creek Bog Thistle Cirsium fontinale vaL obispoensis Betty's Live-forever Dudleva bettinae Jones Layia Lavia ionesii Hoffman Sanicle Sanicula hoffmanii Cuesta Pass Sidalcea Sidalcea hickmanii var.anomala Source:"San Luis Obispo Creek Restoration Plan",The Land Conservancy of San Luis Obispo County.1988. Vegetation along creek banks is important as habitat for terrestrial and aquatic wildlife and for bank stabilization.Trees found along the creek corridors include willow,alder,walnut, sycamore,oak,cottonwood,elderberry,bay laurel,and eucalyptus.Trees shade the creek, keeping water temperatures low enough to support cool-water fisheries.Trees also provide cover for the numerous bird species and mammals.Common groundcover plants include coyote bush,monkey flower,blackberry,sedges,rushes,cattails,and chamise.The roots of these plants and trees serve to hold soil together and add strength to the banks. There are also a number of invasive,non-native plants common in disturbed areas.These include giant reed,castor bean,sweet fennel,nasturtium,and various thistles.These species outcompete the native riparian species,yet do not provide the same protective functions. Giant reed (Arundo donax)has become a problem in the creek corridors by constricting the flow and causing potential flood problems and erosion. San Luis Obispo Creek Watershed -Hydrology 17 18 4.Water supply San Luis Obispo Creek has traditionally been an important water source for area agriculture. Most of this diversion and pumping occurs south of San Luis Obispo.It is estimated that roughly 580 acre-feet per year is diverted for agricultural use.The groundwater basin under the lower reaches is recharged by San Luis Obispo Creek,but may also contribute flow to the Creek depending on the relative water levels in each.This groundwater supply is also important as nearly 409 acre-feet per year are pumped out of this aquifer for agriculture.The municipal water supply for San Luis Obispo,however,is primarily imported,and supplemented by groundwater pumping during times of drought.(Hydrology and Ground- Water Modeling of Lower San Luis Obispo Creek for the City of San Luis Obispo Water Re- use Project,Stetson Engineers,April 1995).The imported municipal water is added to the Creek at the Wastewater Treatment Facility located at the southwest edge of the City,and makes up a significant portion of summer flows. 5.Recreation San Luis Obispo Creek and its tributaries also have significant recreational value.As the creeks flow through Cuesta Park,Santa Rosa Park,Laguna Lake Park,and Mission Plaza, they enhance recreational activities for the area users.Along the creeks in the upper watershed,riparian areas provide an excellent environment for hiking and jogging,and in the lower section,a golf course is enhanced by the creek.In addition,the numerous bird species make the creeks in the watershed excellent areas for birding.Finally,the area at the mouth of San Luis Obispo Creek at Avila Beach is a popular swimming area. Golf courses provide recreation San Luis Obispo Creek Watershed -Hydrology D.WATERSHED PROBLEMS 1.Erosion Erosion of lands within the San Luis Obispo Creek watershed,and along the creek banks,is one of the most challenging dilemmas faced in the watershed.Erosion is a natural process throughout the watershed,but land use in certain areas has accelerated the process to a destructive level.Erosion impacts the streams in numerous ways,depending on where in the watershed it is occurring.Eroded sediment laden with pollution or nutrients can be carried into the streams,contributing to water pollution.Deposited sediment degrades fish habitat by covering the gravelly channel bottoms necessary for spawning.Sediment carried in the water can add erosive force,or be deposited in the channel causing the diversion of flows into the banks,thus causing more erosion. Disturbed soils,particularly in agricultural and industrial areas,can be laden with pesticides, herbicides,fertilizers,and other compounds.Water running off this land carries the pollution-laden soils to the creek where the chemicals can be released to the water and directly impact riparian species.Fertilizers contribute nutrients to the water,and can result in an over abundance of nitrogen and phosphorus compounds in the water,a condition known as eutrophication.These nutrient compounds contribute to excessive algae growth,which when decaying,consume dissolved oxygen needed by fish. In addition to carrying pollution,the eroded sediment causes problems of its own.After entering the streams,the sediment eventually settles out onto the creek bottoms,covering the previously roc~bottoms with fine sediments.Most fish,including the southern steelhead, need rocky creek bottoms for spawning.Excessive sedimentation has already resulted in the loss of most quality spawning grounds in the watershed. Willows:Good or bad? Opinions vary on the value of willows in the riparian corridors.When established on the creek banks,willows are critical to bank stabilization.Their thick matted roots hold banks together,and the stems and branches decrease water velocities along the banks,reducing surface erosion.Problems occur,however,when willows become established in the active creek channel and constrict flows.This "choking"of the creek channel can result in flooding and severe bank erosion.Willows become established in the channel as a result of reduced flow velocities,excessive sedimentation,and the pioneering nature of this species. Sedimentation results from erosion due to poor bank vegetation and surface disturbance. This sediment enters the creeks and is carrie<!downstream until the water velocity is too slow to hold the material.The sediment is then deposited in these areas.Most of the larger gravel bars are formed during high winter flows in areas where the water velocity slows. These become exposed as the water level drops,and can be colonized by willows. San Luis Obispo Creek Watershed -Hydrology 19 20 Willows,therefore,are a good plant which can grow in the wrong place.In order to protect the creek banks,it is best to promote willow growth on creek banks while clearing them from the active channel.Ultimately,however,it is most desirable to promote the establishment of larger woody species which shade out the willows,thus decreasing encroachment into the active channel. Primary Erosion Sources Erosion in the San Luis Obispo Creek watershed has several primary causes including cattle grazing,agriculturalt:illing,construction projects,vegetation clearing,and urban channelization.Where cattle have creek access,riparian vegetation is degraded. Regeneration of vegetation is made more difficult in these areas due to soil compaction caused by the weight of the animals.Riparian species have difficulty growing in this compacted soil.Construction of off-creek watering stations,can help alleviate this problem. Cattle can then "be limited to only certain locations away from riparian corridors. Cattle compact soil,cause erosion,and denude banks. Erosion is also caused by construction grading,vegetation clearing,and agricultural tilling which disturb soil surfaces and leave stream banks unprotected.Construction and flood control activities,however,are usually temporary,and can be mitigated or modified to lessen impacts.Agricultural tilling is a long term activity,but tilling methods stressing soil conservation can be affective in minimizing erosion and sedimentation. In urban areas,development has encroached on the Creek's banks resulting in a narrow channel which is often artificially created.The narrow channels constrict flows and increase water velocities to a level where even previously vegetated banks can wash out.This problem is discussed further under "urban impacts". San Luis Obispo Creek Watershed -Hydrology ~: !. t~ ·-1 1 Additional erosion is occurring throughout the upper watershed from eroded rivulets at the headwaters.These small washes are often devoid of vegetation due to clearing and grazing. Left unprotected,these will continue to grow and produce more sediment. Small un vegetated rivulets contribute to sedimentation 2.Urban Impacts The San Luis Obispo Creek Watershed is an urban impacted watershed.The main stem of San Luis Obispo Creek flows through the City and,at some points,under the City.In addition,two major tributaries,Stenner and Brizziolari Creeks,flow through the City and the University.The urban activities that result in impacts to the waterways include flood control maintenance,channelization,increased runoff,and urban pollution. In these urbanized areas,the Creek poses a dilemma pitting.the restoration of the riparian corridors against the protection of property from flooding and bank loss.Both the City and County of San Luis Obispo have programs for Creek maintenance centered on flood control. These often involve clearing debris from the stream channels.Unfortunately,these have also resulted in stream bank clearing which has left banks vulnerable to erosion.In addition, removal of all debris from a channel results in the loss of fish habitat,as the woody debris contributes to pool formation.With minor modification to channel clearing methods,flood control could be better balanced with the needs of the creek banks and fish. Within the urban area,the Creek has been highly channelized with a patchwork of concrete channels,gabions,riprap,and cement sacks which have stabilized the banks but are suspected of increasing the velocity of flows during storm events.Since there is little space on the banks for stabilizing work,the stabilizing materials often encroach into the channel, thus constricting flows further.Channelization problems could be addressed with stream setback ordinances,aggressive revegetation efforts,and project coordination.There are also a number of bank stabilizing methods that incorporate the use of vegetation and natural materials.These are often equally successful and considerably less expensive than traditional methods while offering the advantage of preserving wildlife and fish habitat and slowing the flow velocities. San Luis Obispo Creek Watershed -Hydrology 21 22 Urban influences also include pollution from storm drain runoff and litter ranging from candy wrappers to abandoned vehicles and furniture.Protecting the creek from these impacts requires constant maintenance and pubic education.Storm drain stencils with slogans such as "No dumping,drains to creek",and events like "Creek Clean-up Day"are good example of education efforts. Despite the challeng(~s to urban restoration (small ownerships,encroachment),private landowners and the City of San Luis Obispo are planning bank stabilization projects. Opportunities exist to cooperate with landowners and agencies to coordinate projects and minimize further impacts associated with channelization. San Luis Obispo Creek flowing through Mission Plaza San Luis Obispo Creek Watershed -Hydrology l J IV.OVERVIEW OF SUB-WATERSHEDS The San Luis Obispo Creek watershed is divided into 15 sub-watersheds.The remainder of this part of the report provides a characterization of each sub-watershed as identified on figure 1.6. The upper watershed survey was conducted to identify restoration opportunities above the main stem of San Luis Obispo Creek.Another goal was to determine sources of suspended sediment in San Luis Obispo Creek and to note the overall condition of the watershed.Of particular interest was soil stability along the channel banks. Each of the sub-watersheds was analyzed with respect to soils,land use,vegetation,and riparian conditions.Sub-basin H is an urban basin which drains directly into the main stem,and is discussed in the main stem analysis.Some of the information was determined using map overlays in a geographic information system (GIS),while the riparian conditions were determined by field surveys from publicly accessible sites.In addition to the ground surveys, each of the sub':watersheds was viewed and photographed from the air. San Luis Obispo Creek Watershed Subwatenbed DeUaeatloas for ModeUag aad Survey Purposes A Upper Stenner Cr. S1DCilyL... N 0 90-t P Harford Canyon San Miguelito Davenport Cr. Lower SLO Cr. Upper Prefumo Lower Prefumo Cr. East Fork SLO Cr. SLO City Brizziolari Cr. Reservoir Canyon North SLO City Laguna Lake Lower Stenner Cr. Upper SLO Cr. o E F K N L H o B c G M -FA FA ,1.5 2 :uFao.s Fig.1.6 -Sub-Watershed Delineations •Note:Sub-watershed J was combined with basin L for analysis San Luis Obispo Creek Watershed -Hydrology 23 A.UPPER STENNER CREEK 1.General characteristics and land use The land within the upper Stenner Creek watershed is dominated by rolling open range lands that extend up into the Santa Lucia Range,where the land becomes steep and wooded with chaparral. The land use is primarily grazing on the open rolling land with some scattered buildings. The ownership is dominated by Cal Poly,but the sub-watershed also contains land owned by the U.S.Forest Service (Los Padres National Forest),Southern Pacific Railroad,and several private individuals. The Highway 41 Fire in the summer of 1994 burned the steeper upland area and resulted in continuing delivery of fine sediment into the lower portions of the Creek.In 1995,the Chorro Valley Pipeline was constructed in this sub-watershed,and after two wet winters, the chapparal is recovering.In addition,the State Water Project has just entered the upper watershed in January,1996.Planned construction through this sub-watershed has the potential to contribute significant sediment loads to Upper Stenner Creek.Mitigation measures have been planned and their relative success will have a direct bearing on the future quality of this area. 2.Issues and opportunities a.The land in the upper watershed is steep,sandy in origin,and produces a large amount of sediment in its natural state.This has been compounded by the fire,and may soon be impacted again by the State Water Project. b.The riparian channel through the open grassland portions of the watershed is unstable overall due to grazing,and requires bank stabilization.Numerous small rivulets with no vegetation may contribute sediment to the stream. 24 San Luis Obispo Creek Watershed -Hydrology ....~ c.The vegetation along the lower sections of the sub-watershed,where the Creek runs through a mountainous pass,is well established but is being impacted by an adjacent road. d.Additional problems related to fish passage have been identified in other reports. e.The large ownerships and access to the land provide an opportunity for long-term restoration and stewardship along the Creek and adjacent land. 3.Field survey notes Field observations were conducted at the following locations (Figure 1.7)and are described in Table 1.1. pper Stenner Creek Sub-Watershed Ground Survey Locations D··?:'CaI ......::':::.;--3 .- 0- Figure 1.7 -Upper Stenner Creek Survey Locations Survey Locations 1.The intersection of Stenner Creek Rd.and Highway 1. 2.100-300'downstream from the bridge at Hwy.1. 3.0-100'downstream from the bridge at Hwy.1. 4.0-300'upstream from the bridge at Hwy.1. 5.Adjacent to RR trestle at the road leading to the filtration facility. 6.500'upstream from the wooden bridge. 7.Approx.1,500'downstream·of the wooden bridge. 8.Near bridge at headwaters. San Luis Obispo Creek Watershed -Hydrology 25 Table 1.1 ~..\;,;.;..:~~-0':~~!.~..,:;.,,.;,;.:,.;,~;..,;:.;w~'''';~'~~~;~:~:.::...:.~-...d'_,••_...",.,.:~~:~+:.:r;;.:.....;;;;;""'-~:';~.~§~~;.:!.t.+~,:·:~..:~:~~~.~~~:~~~-~.~_,:.-.~";.o:.~O;'';',..:;;'.'.';«~!"~~.,,-<••""~,,"'"~. Gasses aIorg the tmks with faw Se.er9y enxlecV l8tieally cut Plirnaily COlI'S0 (sa-d am gra.el).ErcxIecII:mks Bl91NlQE1lated.Flither' ~ished trees.<100k tmks.Sane errbElc:tj1ll.cx:tilIes on ba'lk.era>ion is ire.itat*l. toIal 008 2 SCme estaljishad trees.Eroded bln<s.8 Iijt <100/0 008. ~andgM.kti\9 ctaneI-cxtAies.Exposed bectock in c:I'a"neI. Fu1her ba1k era>ion is ire.Ctable. 3 4 5 Established wlllcMs and sane bail erosion.e::cn:rae syarrores.>00%slabs on wJSt bIn<.B6ter Gedogc stn.dlJll in thaWeg. 008.tim cb.\nstrea'Tl. Established -.egetation.sane ermia1. >60%008 FkJ.y restricted by coraBe bridge. Hgh tood pcXertial. 6 7 8 Established haItM.oocIs. 70%008 on left ba'lk.Enxled and meally cU. lib lSgIllation aIorlJ Exposed I'Octs. riaht lBi<. Mrimal Vegelation. <10010 008 Established Iau'eIs 81d Stabilized by geaogy 81d sycarores.\6QIllation. QB'se material in ttaNeg and Bctile c:I'a"neI.Sane exposed t\'&>. Fi\'&>aIorg tmks.m geologic structt.re. QB'se materials inch.dlll grBI8s. cx:tilIes and baJdErs.Lage a1ll.Na1 deposits. 1fJJ of exposed tmks. m of exposed bin<ac:4acent to a house.Futherermion i~ Stalie area. 26 San Luis Obispo Creek Watershed -Hydrology l 1 B.UPP.ER SAN LUIS OBISPO CREEK 1.General characteristics and land use The Upper San Luis Obispo Creek watershed is characterized by steep hillsides,one deep valley,and a mixture of dense oak woodland and chaparral.The upper portions of the watershed have been affected by the Highway 41 fire (1994).The sides of the canyon contain the railroad and Highway 101 as they extend up the Cuesta Grade. The land use designations for this area are primarily agriculture,with significant portions in the rural lands category.Some of the perimeter lands are planned for open space. Actual land use is mostly grazing and scattered houses.Generally,this is a sparsely developed area with excellent restoration opportunities. The land ownership is in a few large individual holdings and public ownership.Parcel sizes seem to decrease closer to the creek.Among the public owners are the Federal Government (Los Padres National Forest)and Cal Poly. On the western side of the watershed,vegetation is mostly chaparral.The eastern side is made up of scattered hardwoods on the upper slopes and grass woodlands on the lower slopes.In some locations,there are heavy stands of mature riparian vegetation located next to other areas with very poor cover.The condition of the riparian corridor is generally better as the creek approaches the Highway 101 undercrossings. Barren hillsides left by the fire have contributed to erosion and damage to Stagecoach Rd.Several projects were undertaken by San Luis Obispo County to repair the road damage.These utilized riprap and sandy fill material.Without revegetation,some of these areas will probably wash out again.These projectS also left numerous culverts protruding from the roadsides that lack energy dissipation devices.These are already causing erosion and gully formation. San Luis Obispo Creek Watershed -Hydrology 27 1 ! 28 The State Water Project is also planned to come through the lower section of this watershed,and the relative success of the planned mitigation measures will determine the severity of possible impacts.The soil profile for the flatter sections is very deep and highly erodible.Mitigation measures must be closely monitored to determine the impacts of this project. 2.Issues and opportunities a.This area is characterized by many vertically eroded banks. b.Tributary channels from the east side of the Creek are laden with coarse alluviated material,fines,and gravels that are transported downstream. c.Erosion processes in this sub-watershed have apparently been aggravated by the severe damage done by the Highway 41 fire. d.The consolidated land ownership provides an opportunity for long-term restoration and stewardship.The focus will have to be on all land,not just riparian corridors. e.The State 'Water Project will cross San Luis Obispo Creek in this area,and the highly erodible soil will be a challenge to contain and stabilize. 3.Field survey notes Field observations were taken along Stagecoach Rd.Measurements are in miles upstream of Highway 101. Upper san luis Obispo Creek Sub-Watershed Groand Snrvey Locations Eft I o 2000 4000 San Luis Obispo Creek Watershed -Hydrology -, \ Survey Locations I.Intersection of Highway 101 and Stagecoach Rd. 2 ..2 miles. 3..55 miles. 4.1.2 miles. Table 1.2 ~,..........,.~......~,................~."'._......._,,,._.....•••_•••••R~......A'·"••...-~,........•••••••A,•• '3 '::_:~-'~!~~!::::."' >60%cover Yt4th Concrete in \Nest bark, 1 mature caropy.Very little erosion Cobbles.am road nn-off is Less developed Yt4th sorre terracil'YJ.creatil'YJ a gully.Cuvert urdersto crosses lrder .101. Sorre VvOOdy West bali<has Riprap does rot cover vegetation am rroderate erosion.the eroded area.Backfill 2 sparse,NeyJy exposed Cobbles.soil is extremely sardy herbaceous roots.East bank is am may cor1i1'1Je to urx:tersto ri ra .washout. Uniform vegetation cover.Generally stable,Cobbles Yt4th Creek mearders more in3Woodycaropysorrerrirorerosion.serre gravels.tnsarea.Yt4th herbaceoL5 rourd cover Intermittent wr:xxJ.y Less stable area Gravels 90%Tri butary confluerce embedded in point.Higher gradient,vegetation Yt4th Yt4th erodible soils 4 ron-native am sllfll)il'YJ banks.fines.Fines ard proliferation of algae. herbaceous CLdverts aoss Lrder maybe a 2 of 3 culverts are '::.\3 cover.Stagecoach Rd.prodLd of fire clogged wth fines ard \dama e.ravels. '••Ji San Luis Obispo Creek Watershed -Hydrology 29 C.BRIZZIOLARI CRE:EK 1.General characteristics and land use The watershed of Brizziolari Creek is similar to that of Stenner Creek.The Creek begins on the steep chaparral covered hills of the Santa Lucia Range,flows through rolling grasslands and cuts through a narrow opening in the hills to the Cal Poly Campus.The State Water Project will pass through this watershed,and any impacts will depend on the relative success of the planned erosion control measures. Land use is designated for agriculture throughout the entire watershed.The existing land use is grazing.Cattle have access to the channel in most of the upper watershed,and have led to deterioration of channel banks in some of the most accessible areas. Land ownership is dominated by Cal Poly with smaller parts of two other large ownerships.The hills at the southwest of the watershed are part of the Los Padres National Forest.The consolidated ownership presents a unique restoration opportunity. 2.Issues and opportunities a.Despite grazing impacts,the vegetative condition along the entire Creek is generally good.The chatmel is generally stable due to bedrock banks,but small eroded and unvegetated rivulets may contribute to sedimentation. ,. to. 30 San Luis Obispo Creek Watershed -Hydrology ·.., J .1 .., :! b.A few isolated problem areas exist where cattle are in the Creek and road development has occurred.Bank erosion is a problem in these areas. c.Long-term opportunities because of ownership. 3.Field survey notes Field observations were conducted at the following locations (Figure 1.8)and are described in table 1.2.Only a limited number of observations were taken in this section due to the generally uniform conditions and limited physical access. Figure 1.9 -Brizziolari Creek Survey Locations 1.On Cal Poly campus adjacent to buildings at end of road in Poly Canyon. 2.Where the road crosses the Creek near the parking lot at the opening of Poly Canyon. Table 1.3 .-.~'-.. Sparse vegetation where erosion is OCOJrring. Eroded.banks oomprised Errbedded of fine materials.Exposed vel ba '1 gra s.reSDI. eattle allo.Ned in aeek contributing to degradation. Estab!'had h--I..--a-Intemittent bank IS OlUW\JVUO:),ndercutti Exposed but overall,little rover.~.ng. San Luis Obispo Creek Watershed -Hydrology Coarse material. Area stabilized by Row oonsbicted by culvert. exposed bedrock. 31 D.RESERVOIR CANYON 1.General characteristics and land use Most of this area has good riparian vegetation consisting of mature trees.The upper canyon is mostly stable due to good vegetative cover and deeper soils.The vegetation is mostly chaparral woodland with a swath of grass woodland between the steeper ranges. This watershed w:ill also be bisected by the State Water Project.Due to the deep soil . profiles and high erodibility of the soils,the relative success of mitigation measures will be important. The land is zoned for agriculture and open space and is largely undeveloped.This canyon has the most intact and protected natural resources of any within the watershed. Several houses arc~located near Highway 101. The land in this watershed is owned almost entirely by one owner.The City of San Luis Obispo also owns one parcel which is the site of an old water supply reservoir.t·. L. 2.Issues and opportunities a.Long term opportunities for stewardship over a large natural area under a single ownership. b.Some exposed areas were found in the lower canyon near the freeway.These areas have poor vegetation and a deep soil profile. c.Some restoration will most likely be necessary following the water project construction. 32 San Luis Obispo Creek.Watershed -Hydrology 3.Field survey notes Field observations were conducted at the following locations (Figure 1.10)and are described in table 1.4. 1.End of public road. 2.Lower canyon near the white house (Reservoir Canyon Rd.) Reservoir Canyon Sub-Watershed Ground Survey Locations "'.:' il'......._·.•.RoadsoSUbbasins Table 1.4 Et~~i8lfat8f1Oj1§tifs~i£~mr~;;~:p;..,";~~~~;....PP ..P:~.;;~:~: 1 Erosion minimal. Mature riparian Some areas with Cobbles and gravels on vegetation.exposed geology sand banks. I(serpentine). 2 Grasses only.Extreme vertical (Access to survey was bank erosion.limited) San Luis Obispo Creek Watershed -Hydrology 33 E.NORTH SLO CITY 1.General characteristics and land use This sub-watershed contains part of the City of San Luis Obispo.The area outside the city is in good condition overall.Vegetation is diverse and mature consisting of chaparral woodland and grassland.Much of the upstream area was not accessible,but there is little evidence of silt transport in the lower sections.The healthy vegetation has protected the moderate to highly erodible soils.This area will not contribute large amounts of fines to San Luis Obispo Creek. The area within the City is densely developed,and the channel has been modified to some degree.See reach 13 of the main stem analysis (p.99). The land outside the City is zoned for agriculture and rural lands.It is currently grazed on the north side of Highway 101 and open space on the hillside south of Highway 101. It is hill and mountain terrain and includes the pass where the Creek and the highway enter the city. The land ownership outside of the city is mostly in one ownership north of the freeway and in several moderate sized ownerships to the south.Cuesta Park is located north of the freeway.Within tlle city,ownership is in numerous small urban lots. ..c r i:: L· 34 San Luis Obispo Creek Watershed -Hydrology 2.Issues and opportunities a.This sub-watershed is in good condition overall.The need is for ongoing stewardship in order to maintain the existing conditions. b.The portion within City is all developed.There are individual opportunities where banks are still unprotected.See reach 13 of the main stem analysis (p.99). 3.Survey Locations Field observations were conducted at the following locations (Figure 1.11)and are described in table 1.5. ",.,1 North SLO City Sub-Watershed o Subbasins Figure 1.11 -North SLO Creek Survey Locations 1.600'upstream from the bridge crossing SLO Creek adjacent to Cuesta Park. 2.Confluence of ephemeral stream North of the park. San Luis Obispo Creek Watershed -Hydrology 35 Table 1.5 :Loc ...':Vegetation .-,.".;,:Batik;Condltlon -':Substrata 'Notes' Mature riparian Vertically eroded,1 vegetation.Sycamore,roots exposed.Gravels oak.and redwood. 150'upstream of Some vertical erosion at 2 tributary are small confluence of Sand and willows.Channel is stream,minimal Gravels. choked upstream.erosion upstream. 36 San Luis Obispo Creek Watershed -Hydrology "1 ! F.LOWER STENNER CREEK 1.General characteristics and land use This sub-watershed is mostly developed,and the channel is often artificial.Impervious surfaces may create flashy flows,but sediment loads are minimal.The increased flow may contribute to erosion downstream.This area has a lower gradient than most of the other sub-watersheds,so flows are slower.Brizziolari and Old Garden Creeks join Stenner Creek in this sub-watershed,adding to flows. Stenner Creek flows through the heart ofSan Luis Obispo Riparian vegetation in this watershed is sparse to nonexistent.Because much of this watershed is impervious,the erodibility of soils is only significant along the channels. Away from the creeks,vege~tion consists of grass lawns and ornamentals. The land use is mostly urban residential and commercial development.Ownership is in multiple small lots as is common throughout the urbanized area within-San Luis Obispo. The urban uses in this sub-watershed contribute to pollution of runoff,as aqtomobile waste,home gardening waste,and litter enter the Creek during rain events. 2.Issues and opportunities a.This sub-watershed is largely developed,and the channel is often artificial. Restoration opportunities are remedial and related to enhancing riparian habitats within the urban setting. b.There are opportunities to work with the City of San Luis Obispo and Cal Poly on cooperative revegetation and bank stabilization projects. San Luis Obispo Creek Watershed -Hydrology 37 3.Field survey notes Field observations were conducted at the following locations (Figure 1.12)and are described in table 1.6. Lower Stenner Creek Sub-Watershed o Subbasins Figure 1.12 -Lower Stenner Creek Survey Locations Ground Survey Locations 1.1.5 blocks north of the intersection of Old Garden Creek and Patricia Dr. 2.Along Highland Dr. 3.At confluence with SLO Creek. Table 1.6 I'" L. 1 2 3 Channel lined with concrete.No vegetation. Sparse VeQeiSation. Some established riparian vegetation. Artificially channelized. No banks roted. Minimal erosion.Banks artificially protected in many places. No deposition noted. 38 San Luis Obispo Creek Watershed -Hydrology G.LAGUNA LAKE 1.General characteristics and land use Open grasslands and grazing lands dominate this sub-watershed.The Lake and some nearby wetlands are also unique features in this area.Vegetation conditions are good in Sycamore Canyon and poor in the lower sections approaching the Lake.Eroded sands and fines are moved from the heavily grazed areas off O'Connor Rd.and Foothill Blvd. into Laguna Lake,not San Luis Obispo Creek. The designated use for most of this area is agriculture,and grazing is the main use in the undeveloped areas.Several pockets of residential rural exhist along O'Connor Rd.near Foothill Blvd.,and in Sycamore Canyon.The developed area immediately along Foothill Blvd.at O'Connor Rd.is zoned residential suburban.Much of the area around the Lake, however,is considered urban. Except for several clusters of small lots,the ownership is made up mostly of large lots ranging from 100 to over 400 acres. In Sycamore Canyon and on the slopes of the Morros,vegetation is mainly chaparral woodland,while the valley floors are generally grasslands.The soils in the flatter lands are not highly erodible.The hillside soils,however,are vulnerable to considerable erosion. 2.Issues and opportunities a.Establishing vegetation in the lower sections approaching the lake. b.Maintaining and using the Lake as a sediment trap with periodic sediment removal. c.Wetland restoration along the lower reaches within open grazing land. San Luis Obispo Creek Watershed -Hydrology 39 3.Field survey no~es Field observations were conducted at the following locations (Figure 1.13)and are described in table 1.7. Fig.1.13 -Laguna Lake Survey Locations Laguna Lake Sub-Watershed I.Intersection of Los Osos Valley Rd.and Foothill Blvd. 2.O'Connor Rd. 3.East of O'Connor Rd.where small tributary crosses under Foothill Blvd. i... Drains to Laguna Lake.* ·L6~··•••·••••··V&d&t~ti6h.·:•••••.•.:.::IB~rikOOhditi6h<Sub~t ..ati .••••·••·.··Nb~$••·····••• Mixed hardwoods r1ble 1.along ephEtmeral So~e bank h .~11 cutting.c ann"'l 2 Primarily grasses and a few willows..Some bank Vegetation on banks erosion,but of tributari~3s varies minimal. with *Drains to Laguna Lake. 3 Grasses.Intermittent vertical erosion *Drains to Laguna Lake. *-Data not available due to access limitations 40 San Luis Obispo Creek Watershed -Hydrology ...., j I.EAST FORK SAN LUIS OBISPO CREEK 1.General characteristics and land use This is the largest sub-watershed and has three main components;the hillsides of the Santa Lucia Range,the flat agricultural valley,and a better established riparian system along the west side of the valley. Almost 1/3 of this sub-watershed is zoned for urban uses,while the remaining land is zoned primarily for agriculture.Much of the urban zoned area is not yet built out. The land use is made up of scattered homes,agriculture,and grazing in the upper watershed.Agriculture in this area is a unique mix of products including wine grapes and avocados.Throughout these areas,riparian vegetation has been removed and degraded. The middle watershed is characterized by urban development including the airport and associated industrial uses.In the lower watershed,southeast of the airport,the land use returns primarily to farming and grazing. The land ownership is mixed with large parcels in the upper watershed and close to the main stem and small urban sized lots in the middle.Restoration,therefore,must take a variety of approaches with different groups of landowners. The differing land uses and management practices between different ownerships have had significant effects on the quality of the riparian areas.The main stem of the East Fork is variable in its condition.While some areas have rich riparian corridors,adjacent areas are devoid of vegetation.Cattle have access to the creek in numerous areas and San Luis Obispo Creek Watershed -Hydrology 41 42 have had a noticeable effect on the vegetation along the banks.The many smaller channels of the East Fork are narrow,poorly defined,and dominated by vineyards, grazing,and urban influences of the airport area. The vegetation in the foothills is mostly chaparral and sage woodland and becomes grassland as the topography becomes flatter.Included in this area is the La Lomita .Ranch,a significant expanse of open grassland north of the airport.Current land use has changed much of the natural vegetation. The soils in this sub-watershed are moderate to highly erodible.Fine sediments from this sub-watershed can be transported to San Luis Obispo Creek.Erosion in this area is primarily land use caused. 2.Issues and opportunities a.Working with owners of large parcels along the foothills on revegetation.The middle sub-watershed is a good place for sediment traps. b.Restoration within urban areas. c.Major restoration efforts and stewardship should focus on expanding the good section of the East Fork,near the intersection of Vachel Ln &Buckley Rd.,and helping to stop sedimentation there. d.Address the damage done to the riparian corridors by cattle in the lower watershed by implementing conservation oriented management practices. 3.Survey Locations Field observation:;were conducted at the following locations (Figure 1.14)and are described in table 1.8. San Luis Obispo Creek Watershed -Hydrology ~.. ,.. ~-.I j East Fork Sub-Watershed Ground Survey Locatlons Fig.1.14 -East Fork Survey Locations 1.Davenport Creek Rd.where it crosses the Creek. 2.Where unnamed tributary crosses Santa Fe Rd. 3.Where same tributary crosses Hwy.227. 4.Where stream crosses Orcutt Rd at the intersection with Tank Farm Rd. 5.Where the channel crosses Buckley Rd. ..;Mature willows,Possible vegetation :':';Minimal erosion,encroachment2sycamoresand•mostly stable problem in the future.walnuts.Grazed to channel 3 Minimal erosion.• Cattle have access to 4 Grasses Minimal erosion,•the channel on the some undercutting.north side of the road. New ark on S.side. --Grasses on east Cattle in the channelside,willow on the on the east side of the 5 west where there Vertical bank erosion.•bridge.Artificiaiarenocattle.S 0 me cottonwood and debris dam west of walnut.bridge. *-Data unavailable due to access limitations San Luis Obispo Creek Watershed -Hydrology 43 44 K.PREFUMO CREEK 1.General characteristics and land use This is a steep and wooded area in the Irish Hills with some scattered home site development.The predominant vegetation regime is chaparral woodland. The zoning designation is rural lands for most of the watershed,with some zoned for agriculture.At the base of the watershed,there is a mix of urban,residential rural,and residential suburban zoning.The land use is primarily grazing and open space. Residential development is limited to a few scattered homes.More development is imminent in the lower watershed as part of the Emerald Hills subdivision.Application has also been submitted for the subdivision of another large parcel along the creek. The ownership is in large blocks away from the city with smaller lots and a trailer park in ~:: the lower watershed.Prefumo Creek also flows through the Laguna Lake golf course,L.: where the riparian vegetation has been removed,and the banks are badly eroded. The soil types in this watershed have a high to very high potential for erosion.Good vegetative cover has mitigated erosion problems in most of this basin. Riparian vegetation in this sub-watershed is good overall with a mix of established trees. Some grazed areas have been left unprotected,but the problem areas are isolated.There l' is some potential for sediment transport from this area,but it would be deposited into Laguna Lake rather than San Luis Obispo Creek. San Luis Obispo Creek Watershed -Hydrology .:'~ 2.Issues and opportunities a.Restoration where the Creek enters the city,and through the golf course. b.Work with landowners to improve grazing practices and trying to save the remaining high quality areas. c.Reduce fish barriers where the Creek enters urban areas. 3.Field survey notes Field observations were conducted at the following locations (Fig.1.15)and are described in table 1.9.Measurements are in miles downstream from where Prefumo Canyon-Rd.pavement ends . Figure 1.15 Prefumo Creek Survey Locations Survey Locations 1..1 2..4 3..9 4.1.4 5.1.9 6.2.6 San Luis Obispo Creek Watershed -Hydrology 45 Table /.9 ....:.~:.,"::,"~,:;:.;.::".:~<::'.:::,":".~:::'.":.-:.'.:.:."-."......:'.":":..::.. ',,"'.'.:::....:..'::."Lici'::.".....,.,.,.:-,..,....-,........,.-.,.......,...,:, :,,':::~~~~~~i~~::,:,""'!Banl{:Colidition'·::':Substrata:.···'.:Notes:'.,...,.,:..,'.:, , ,,:,.,~.",,:.:.<...,..:.:.;."""'.:.".:-,... :'.-..:':::'~:":':':"....:...•..::;:...:.....'.'',:..:,-::.,.:..,.,",.:::.:....,.... .~: (R):Sycamores,12'vertical banks Gravel/Configuration1oaks,and willows. IlL):Grasses on Iv on left Cobble geologically controlled (R):Sycamore,Sand,Home seems to be built 2 Willow,Oak.(L):Minimal erosion.Gravel,on mid-channel bar. Home SYcamore.Cobble Stream splits. (R):Oak,Laurel,(R):Undercut banks Mid-channel boulders Cobbles /increase streem depth3Willow.(L):Road,6',roots exposed.Boulders.leading to saturationWillow,Sycamore.(L):Riprap and bank failure. (R):Chaparrral (R):12'vertical Gravels I (R):800'of exposed4(L):Willow.erosion.(L):No Sands soil and bank failures.erosion. Mid-channel bar splits 5 (R):Sycamore,Minimal erosion.Cobbles /flows and may cause Oaks (L):Willow Gravels.erosion near road. Some riorao. (R)Sparse upper Lack of woody veg.6 canopy.(L):Few Intermittant erosion.Gravels Oaks near mobile home park. f' 46 San Luis Obispo Cr.eek Watershed -Hydrology . L.FROOM CREEK 1.General characteristics and land use The Froom Cr.watershed is a hidden,steep,and chaparral covered area.Considerable erosion is taking place along this perennial creek.A road has been constructed along the length of the Creek,apparently by blasting into the rocky hillsides.Gravel from the road construction fills the channel bed.A large mound of accumulated alluvium is piled up at the base of the canyon.This area drains to a lowland west of Highway 101 and is subsequently piped under the freeway to the main stem,downstream of Los Osos Valley Rd. Vegetation consists of chaparral woodland on the steep slopes and grassland on the flatter lowlands.In addition,serpentine endemics can be found on the rocky outcroppings.The soils range from high to very high in erosion hazard,and disruption of vegetation caused by road construction has led to severe erosion. The land use is open space on the upper slopes and grazing on the lowlands.Along Los Osos Valley Rd.and Highway 101,the land is zoned for urban uses,while the remaining lowlands are zoned for agriculture. The ownership is divided up into several moderate to large holdings.Most of the erosion is isolated in very few ownerships centered around Froom Creek and the canyon area. 2.Issues and opportunities a.Ownership of the most damaged areas is in a single ownership. b.Important plants in the area include serpentine endemics. c.The lower flat land,between the hills and Los Osos Valley Road,is serving as a sediment trap.This will need to be considered in future land uses for this parcel. San Luis Obispo Creek Watershed -Hydrology 47 48 3.Field Survey notes Field observations were not conducted in this watershed due to private ownership and access limitations.Aerial survey provided some of the above information. •LaUsoSubbasins Figure 1.16 Froom Creek Sub-Watershed San Luis Obispo Creek Watershed -Hydrology :.~",! M.DAVENPORT CREEK 1.General characteristics and land use This watershed extends from the vineyards and agricultural lands east of Highway 227, through.the country club area,and out into another agricultural area.The vegetation is grassland on the flatter valley floor,while agricultural crops dominate along the headwaters near Orcutt Rd.Through the Davenport Hills,the vegetation is mainly chaparral.As Davenport Creek approaches San Luis Obispo Creek,riparian vegetation conditions are extremely poor. The land use designation is agriculture for the area east of Hwy.227,and urban near the airport and country club.West of the airport,the land use designation returns to agriculture.There are isolated pockets of residential rural zoning along Davenport Cr. Rd.Current land uses include vineyards,grazing,commercial uses,and residential. Much of the land in this sub-watershed has been extensively grazed,and where grazing is occurring,erosion is present.Cattle in the channel are a substantial problem in this sub-watershed. San Luis Obispo Creek Watershed -Hydrology 49 50 The ownership pattern is made up of mostly large parcels ranging from 200-400 acres. Much of the upper and lower watersheds are in single ownerships.The middle watershed is dominated by the country club area with numerous small lots.Lot sizes are also generally small along Davenport Creek Rd.These range from 10-40 acres. This watershed is primarily lowland and has a deep soil profile.Erosion hazard in the upper watershed is generally slight.The soils have a higher erosion potential as they approach San Luis Obispo Creek. Land use and management practices vary corisiderably between different ownerships.In several locations riparian vegetation seizes at the property line. Due to the combination of heavy grazing,farming,and notable erosion,this watershed may be contributing significant sediment loads into San Luis Obispo Creek.The confluence of Davenport Creek with SLO Creek showed little evidence of silt deposition at the time of the survey,although it is possible that recent high flows carried the sediment downstream. 2.Issues and opportunities a.There is an opportunity in an area upstream of the confluence with San Luis Obispo Creek to enhance its ability to act as a sediment trap.Reestablishing vegetation in this marshy area could enhance deposition of sediment by slowing the water velocities. b.Work with owners on grazing practices,perhaps by providing off-creek watering facilities and fencing riparian corridors.Revegetation of degraded banks. c.Work with vineyard operators to limit vegetation removal and revegetate channels. 3.Field survey notes Field observations were conducted at the following locations (Fig.1.17)and are described in table 1.10. San Luis Obispo Creek Watershed a Hydrology "..~ ~:M:City ofSan Luis Obispot:i Subbasins Figure 1.17 Davenport Creek Survey Locations 1.Where tributary of Davenport Creek crosses Biddle Ranch Rd. 2.Where headwaters of Davenport Creek cross Orcutt Rd. 3.Where Hwy.227 crosses the railroad tracks. 4.Intersection of Davenport Creek and Los Ranchos Rd. 5.End of Davenport Creek Rd. 6.Intersection of Davenport Creek and Jesperson Rd. San Luis Obispo Creek Watershed -Hydrology 51 Table 1.10 .••.".•...•_....•·n,.. ;=.:S ::;Z2rrSi~t~~~~'";~·::~~rO'ji~::.::i'l~:;:l::ii&1Gaijiji:;;::~2:Mtiifi~~i]~ ~.•••••,_,_••_n '.".'•••,_.__~__•••••_"•••••••••••••••••••_•••_•••••••••••••_•••_........••••••••••••••••••_•••••••••,••_ . •••••••••,n ._••••••~••_.~.•••••••••••••_~••'••••,__••,.....•••••" "••••_••••"_.,.~"•••_.~.••••,......••••••••••••__,....~_.__ 1 Intermittent sycamores along active channel. Soils has been plowed into the channel on the north side. No discernible banks.*Irrigated agriculture. 2 70%cover wUh willows and sycamores. Extreme bank erosion on the west * bank,where there is no veoetation. Grazing, cattle allowed in the Creek. 3 4 5 6 Intermittent vegetation. Willows.Channel completelv choked. Willows.15-20'tall. Encroaching in the stream channel. All grasses on the east side,and maturing willows on the west. None noted. None noted. Minimal erosion. Vertical erosion on the east with minimal erosion on the west. * * * * Grazing on both sides of the creek. Grazed. 52 *-Data unavailable due to access limitations San Luis Obispo Creek Watershed -Hydrqlogy 1-. N.LOWER SAN LUIS OBISPO CREEK 1.General characteristics and land use This watershed includes two very different types of land,evenly divided by the main stem of San Luis Obispo Creek and Highway 101 (that follows the creek). The east side of the freeway includes flat bottomland that is in active agriculture and wooded hillsides that include a substantial number of home sites.Vegetative cover throughout the sub-watershed is good,and exposed bedrock has stabilized the tributary channels.No evidence of sediment loading or deposition were found in the lower elevations.There is,however,considerable deposition and bank erosion occurring along San Luis Obispo Creek in this area. The land west of the freeway includes mainly hillsides and narrow riparian areas in the bottom of the valley.This side is very different from the east side.There is significantly less vegetative cover.Fine materials from the west side have piled up along Ontario Rd., but due to limited access,the cause could not be completely investigated. The land use designations are a hodgepodge of agriculture,rural lands,residential rural, residential suburban,and urban.The actual land use is housing in Squire Canyon and areas approaching Avila Beach,grazing and open space west of the freeway,and agriculture in the valley along the Creek. The ownership is a mix of large and small holdings.Parcel sizes decrease closer to the creek and in the Squire Canyon·area. The varying land uses and numerous owners present a challenge to widespread restoration efforts.The best opportunities for restoration are the agricultural areas along the main stem of San Luis Obispo Creek where bank erosion is most common. San Luis Obispo Creek Watershed -Hydrology 53 2.Issues and opportunities a.Restoration should focus on immediate bank work and the establishment of large canopy trees. b.This section of the main stem faces a possible decline in water levels due to the future reclamation of treated wastewater.This may affect restoration opportunities. 3.Field survey notes Field observations were conducted at the following locations (Fig.1.18)and are described in Table 1.11. 1.Squire Canyon 2.Castro Canyon 3.Small canyon ,entrance west ofHwy.101 at the Higuera St.Exit. 4.Near confluence of unnamed stream with SLO Creek 5.At 3-way intersection where unnamed stream crosses Monte Rd. Figure 1.18 Lower San Luis Obispo Creek Survey Loactions ;~';~'.{:;.... 54 San Luis Obispo Creek Watershed -Hydrology Table l.ll 1 2 Upper watershed 70%oaks,20% manzanita.Lower watershed mostly oaks. Sycamores and oaks. Minimal erosion.Some alluviated fine in an ephemeral channel (isolated problem) No signs of alluviated material. Thin soils and exposed bedrock. Exposed bedrock Some flooding in upper in 1995 storms. watershed. 3 4 Intermittent vegetation.Oaks and sycamore. Some erosion.Alluvial material is collecting where ephemeral stream meets Ontario Rd. Minimal erosion. * Sands and gravels. This watershed most likely delivers significant sediment loads to SLO Creek. No evidence of deposition in lower reach. Willows encroaching in 5 upstream area.No erosion seen. Downstream areas have minimal veaetation. *-Data unavailable due to access limitations San Luis Obispo Creek Watershed -Hydrology Thin soils and exposed bedrock. 55 o.SAN MIGUELITO (SEE CANYON)CREEK 1.General characteristics and land use See Canyon extends inland with apple orchards in the lower section and steep wooded hillsides and grasBlands in the upper watershed.The vegetation throughout the watershed is mostly chaparral woodland.The lower creek is heavily impacted by adjacent farming and residential development.It is,however,one of the best sub- watersheds for fish. The land use designations are residential rural for the bottom of the canyon and rural lands on the upper slopes.Land use in this watershed in primarily open space with scattered residential dwellings located in the canyon along the Creek.These are small lots and houses,so minimal grading has taken place.Orchards dominate in the lower watershed .. The ownership pattern is one of multiple small lots in the lower slopes of the watershed. The steep slopes in the upper watershed are generally in larger holdings. The soils on the steep slopes north of the Creek are moderate to highly erodible,while the area south of the creek is characterized by less erodible soils. Vegetative conditions along the creek are generally fair to good.Unvegetated areas, particularly along the road are experiencing erosion.While erosion is taking place,most of the material is fairly coarse,so fine sediment deposition is minimal.Any restoration efforts would have to include multiple owners. 2.Issues and opportunities a.Focus on individual sections of the Creek with individual landowners. b.Opportunity bl~cause of interested landowners. 3.Field survey notes Field observations were conducted at the following locations (Figure 1.19)and are .described in table 1.12. The following observation points are measured in miles from the intersection of See Canyon Rd.and San Luis Bay Dr.heading upstream. 1..6 2.2.2 3.2.6 I· 56 San Luis Obispo Creek Watershed -Hydrology See Canyon Creek SUb-Watershed o Subbasins Figure 1.19 See Canyon Survey Locations Table 1.12 Highly Bank severelyestablished Gravel,cobble,and 1 walnuts,oaks,eroded.25'vertical.some fines.Some undercutting.and s camores. Rip-rap placed Established Fines,sand,and downstream of vegetation on Severely eroded cobble along the eroded bank may 2 the east side.section 20'deep banks.Cobbles have constricted Grasses only on and 120'long.and gravels in the flow,causing the west side.thalweg.pooling.Highly unstable area. Established Severe undercutting Road falling from 3 mixed *undercut at outer hardwoods.along the road.tum in the Creek. •-Data unavailable due to access limitations San Luis Obispo Creek Watershed -Hydrology 57 P.HARFORD CANYON 1.General chara(:teristics and land use This watershed is very different from all others.It is coastal and dominated by development and a golf course. The land use designations from the County General Plan are urban for the lower watershed and rural lands in the upper canyon.There is also a strip of area zoned for agriculture along Harford Canyon Creek,west of the golf course.The land use consists of a country club type facility with a golf course and hotel. The ownership is generally in large holdings except for the San Luis Bay Estates area. Much of the upper watershed is owned by The Nature Conservancy,a national nonprofit conservation organization. Vegetation consists primarily of chaparral and chaparral woodland in the areas not developed for the golf course or town.Most of the lowlands along the golf course are grasses with very poor to nonexistent riparian vegetation.Riparian vegetation improves dramatically above the golf course. Soils in the entire watershed are highly erodible.The confluence of the riparian channel of this sub-watershed and San Luis Obispo Creek is very close to the mouth of SLO Creek,so any fines or sands that are carried in the stream will be deposited in the ocean. 2.Issues and opportunities a.The ownership pattern provides an opportunity. b.Planned developments may offer open space. c.Work with golf course to control fertilizer runoff. 3.Field survey notes Field observations were conducted at the following locations (Figure 1.20)and are described in table 1.13. ~.,.. 58 San Luis Obispo Creek Watershed -Hydrology Harford Canyon Creek Sub-Watershed Ground Survey Locations o Subbasins Figure 1.20 Harford Canyon Survey Locations Survey Locations 1.Fork in stream. 2.Foot bridge near above location. 3.Confluence of two main tributaries. 4.Right tributary facing north. 5.Mouth of stream from Harford canyon. San Luis Obispo Creek Watershed -Hydrology 59 Table 1.13 ...::"..,.....,';.::.:.....~;:-- Mainly sycamore L.Some vertical Sands,gravels,and Golf1erosion.R.Verticalandwillow.bank 7'high.cobbles.course. Vertically eroded Sands,gravels,and2Grassesonly.bank 8'high.Some cobbles.rip-rap. 24 " 3 Mature riparian Gravel deposition Gravels.culvert vegetation.along banks.under cart oath. 4 5 60 Willows in thalweg.Also oaks and sycamores. Sand and gravel deposition around willows in channel.Sand and gravel. Banks are in good condition. Some remaining signs of vertical bank S d d I. N an an grave.erosion.ew culverts installed. San Luis Obispo Creek Watershed -Hydrology ,. ~:.. .j !; " j .j Q.SUMMARY OF SUB-WATERSHED EVALUATION Each of the above sub-watersheds has been evaluated for the condition of the riparian vegetation,problem areas for erosion,and its potential to deliver sediment loads to San Luis Obispo Creek.The main indicators of sediment loading in the sub-watersheds are the degree of erosion and the amount of deposition found in the lower stretches of the sub-watershed stream channels.The amount of sediment deposition was determined by visual survey,not a scientific method.Several of the evaluated watersheds were found to be capable of delivering fine sediment loads to San Luis Obispo Creek. Upper Stenner Creek has a high potential to deliver sediment.Extensive grazing and a lack of riparian vegetation are the main problems.Several sections were identified as having severe erosion problems.Bank stabilization should be done along the banks of this stream. The Upper San Luis Obispo Creek sub-watershed,which is experiencing fire and construction induced erosion,may also contribute to sediment problems.Grazing has led to erosion in the lower sections of this basin.The consolidated ownership provides an opportunity to address grazing impacts,and the construction impacts may be mitigated depending on the success of mitigation plans. Grazing damage to bank vegetation has also left much of the East Fork and Davenport Creek sub-watersheds vulnerable to erosion,and the lack of cover will contribute to high water temperatures.In addition,cattle in the Creek channels and adjacent farming operations present potential nutrient loading problems.These areas will certainly deliver sediment to San Luis Obispo Creek and,possibly,warm nutrient laden water.Most of these problems, however,can be addressed with innovative management techniques,and can be implemented in cooperation with local land owners. Analysis of the sub-watersheds has shown that most of the instability has been land use induced,and that the problem areas are primarily the lower reaches of each sub-watershed. As historic catchments of upstream sediment,these areas generally have deeper soil profiles and higher erosion potential.These are also areas with development potential and good grazing land,and these activities have aggravated erosion problems. Figure 1.21 illustrates the sub-watersheds and their relative potential for sediment loading into the main stem.The designations were based on visual survey of the main tributaries near the confluence with the main stem,and the relative size amount of deposited material.These ratings address the amount of coarser sediment delivery (sand and larger),rather than the fine suspended sediment load which would be carried downstream. San Luis Obispo Creek Watershed -Hydrology 61 San Luis Obispo Creek Sub-watersheds Potential for Sediment Contribution to the Main Stem Sediment Contribution ~MiIlimaI ~D:~ Urban Main Sian •Region H is a main stem area,so no evaluation of sediment loading was done. Figure 1.21 Sediment Delivery Potential N I E3o.5 Miles E3 1 1.5 E3 2 2.5 62 San Luis Obispo Creek Watershed -Hydrology V.MAIN STEM EVALUATION The main stem of San Luis Obispo Creek has been experiencing significant bank erosion and problems related to sediment deposition.The purpose of this section is to identify the problem areas,potential causes,and restoration priorities within each main stem reach. To obtain a detailed picture of the problems and restoration opportunities,the entire length of the main stem was surveyed in the field.The first step in this process was to divide the Creek into identifiable reaches for the purposes of data organization.Figure 2.1 shows the reach designations.The reach delineations were created,primarily,as a practical unit of data storage and were based on factors such as slope breaks,significant changes in vegetation or land use (often indicative of ownership change),landmarks,and tributary confluence points. Once the reaches were delineated,they were mapped and photographed from the air.The reaches were then walked and data was gathered for representative areas.Data for this report represent conditions during the survey,which was undertaken between October and December,1995. DATA VARIABLES AND COLLECTION METHODS The variables for which data was gathered included field distance,dominant vegetation, minimum and maximum depth,width to depth ratio,wetted perimeter,slope,bank condition,D so (substrate),channel features,and land use.Definitions for these variables, and collection methods are described below.These were chosen to characterize the riparian conditions of the Main Stem of San Luis Obispo Creek.They were also interpreted to fit a Stream Reach Inventory and Channel Stability Evaluation Model used by the USDA Forest Service.Several extra variables were added to build a more complete picture of channel conditions and restoration opportunities along each reach of the Creek. Field Distance , The length of each reach,in feet,measured in the upstream direction.The parameters observed for each of the reaches were sampled on even intervals,usually 300 feet. Minimum Depth The shallowest thalweg depth,in tenths of feet,observed within the reach.These were logged at the current flow during the survey. Maximum Depth at Bankfull Estimated in the field as the maximum depth when the channel is at bankfull.This, combined with width is representative of channel capacity. Width to Depth Ratio (WID) This is the width divided by the depth,and was estimated in the field.Generally,width to depth ratios should increase downstream as flows increase.This number can also be San Luis Obispo Creek Watershed -Hydrology 63 64 Fi re 2.1 Main Stem Reach Desi ations San Luis Obispo Creek Watershed Main Stem Reaches ~. __-;'I:.f.(l _San Luill Bay Dr. N fA. San Luis Obispo Creek Watershed-Hydrology interpreted as an indicator of erosion.Banks with more erodible soils will generally have a higher width to depth ratio since the width increases when banks erode.Vegetation along creek banks can prevent erosion and lead to a narrowing of the channel and,thus,a lower WID.Finally,a high WID with no current bank erosion may be an indicator of past susceptibility to erosion.These areas should be monitored regularly for maintenance. The validity of this parameter is,however,questionable in an incised channel such as SLO Creek's.It is included here for comparative,rather than absolute purposes. Wetted Perimeter This is the wetted area measured (in feet)from both the active channel and the thalweg (line of greatest slope).These were measured in representative transects at the current flow during the survey. BankS/ope Measured in degrees of the right and left banks (looking upstream). D so A measure of the channel substrata particle size.The D so is the median particle size. Visually estimated at regular intervals. Dominant Vegetation Information on tree species used to evaluate vegetative bank protection.Maturing willows refers to trees between 20-30 feet tall,mature willows are those over 30 feet. Mature riparian vegetation is a variety of well-established mature species. Bank Condition Notes on the condition of the banks taken in damaged areas.Information is broken out between upper and lower,and left and right banks (looking upstream). Land-Use The land use adjacent to the creeks.Some land uses have more severe impacts on bank conditions,and contribute to the delivery of varying amounts of sediment. CHANNEL STABILITY EVALUATION AND MODELING The data gathered for these Creek reaches was also interpreted to fit into a modified Stream Reach Inventory and Channel Stability Evaluation Model used by the USDA Forest Service.This model was originally designed for mountain streams and was modified for this coastal stream by dropping out variables which were not germane to coastal study.The model used 7 of the original 15 parameters.Since this model has been modified to fit the San Luis Obispo Creek Watershed,the results should only be used to compare each reach with other reaches,rather than comparing them to the results from other coastal streams.Table 2.1 describes the indexing of variables and table 2.2 shows the reach scoring matrix. San Luis Obispo Creek Watershed -Hydrology 65 Table 2.] 1 Bank Slope <30%2 30-40%4 40-60%6 >60% . Igts 12 2 Occurrence of eroded banks 0-6 3 7-13 6 14-20 9 >21 12 3 Vegetative Protection Some mature Mature,Variety 70-90% >90%Cover 3 cover Nearly monotypic,50- 6 70%cover Herbaceous plants,<50% 9 cover 12 4 5 6 7 Bankfull Channel Capacity .WID <7 Occurrence of bank cutting Little or None Occurrence of deoosition Little or None Bottom size No change distribution alone]reach Table 2.2 1 WID 8-15 2 WID 15-25 3 WID>25 4 Some.Frequent 4 intermittent 6 Sianificant 12 failures 16 Some.Extensive 4 intermittent 8 Moderate 12 deposits 16 Slight dist.Moderate Marked dist. 4 chanae 8 chanaes 12 chanae 16 66 Reach 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 12 12 12 12 12 12 12 12 12 12 12 12 12 12 2 12 3 9 6 6 6 6 9 9 3 6 3 6 9 Item 3 12 3 6 9 6 9 9 9 12 12 12 9 6 6 4 2 1 2 2 1 1 1 1 2 2 1 2 2 3 5 16 4 12 6 6 6 6 16 12 6 6 4 6 16 6 8 4 8 16 8 12 8 12 12 8 8 4 8 12 7 12 12 12 12 12 12 12 8 4 4 4 4 4 12 Total 74 39 61 63 51 58 54 67 63 47 49 38 44 70 Rank 1 13 6 4 9 7 8 3 5 11 10 14 12 2 This reach evaluation gives a general indication (rank)of the relative severity of erosion problems along the reaches of the main stem of San Luis Obispo Creek.The rank listed in the above table represents the susceptability of each reach to erosion.A ranking of one indicates the most severe case of channel instability using this method. San Luis Obispo Creek Watershed-Hydrology 'l ) A.REACH ONE -AVILA BEACH TO SAN LUIS BAY DRIVE Pacific Ocean o 1000 ~o Figure 2.2 -Reach #1 1.Location and general description Reach one extends from the mouth of the Creek in Avila Beach to the bridge at San Luis Bay Dr.(Figure 2.2).The lowest section of this reach flows through the San Luis Bay Golf Course,and is brackish due to tidal influences.The Marre Dam forms a barrier to tidal inundation and holds much of the Creek behind it.This has lead to extensive pooling upstream of the dam.The lower flow velocities generated by the pooling have allowed fine sediments to be deposited,leaving a channel bed which is primarily sand, silt,and clay. In the upper portion of this reach,above the dam,the Creek is bordered by a residential subdivision and bicycle path on the north side.The south side of this reach is bordered by Avila Road.The vegetation in this section is more mature than the downstream area, and consists of poplar,an occasional oak,and willow. Below the dam the Creek flows through a narrow corridor with native oaks on the north side and disturbed willows and nonnative castor bean on the south side.The channel then widens out and becomes flatter at the first golf course bridge.From this point towards the ocean,the Creek is bordered on both sides by a golf course. There is severe bank erosion at two points in the golf course.The first is on the outside of a big bend in the river on the south side.The second is on the north side of the Creek opposite Avila Road.Severe erosion due to the storms of 1995 caused the collapse of bridges throughout the golf course and a concrete pathway to fall into the Creek at these locations. San Luis Obispo Creek Watershed -Hydrology 67 II Bank cutting and associated erosion are a significant source of sedimentation into the estuary,which is scarce habitat for several species including the Tidewater Goby. Above Marre Dam the bank condition improves markedly and the banks are generally in good condition. This picture shows Marre Dam,the fish ladder on the northern side ofthe creek and the thick riparian vegetation upstream ofthe dam. Another feature of the Creek in this reach that will require long-term monitoring is the constriction caused by the bridge at the intersection of San Luis Bay Dr.and Avila Road. Debris dams build in this area and may cause upstream flooding and increase flow velocity in the immediate area. Width and depth measurements were not taken for this section of the Creek due to the extensive pooling. Adjacent Soil Summary t '.' " 68 138 156 194 223 Loam San Luis Obispo Creek Watershed-Hydrology 2.Problems and Opportunities a.Bank stabilization 1)Bank stabilization work is necessary in two places on this reach.The severity of the erosion and the height of the bank,coupled with high flood flows and tidal fluctuation may require structural solutions.The are a number of bio-technical methods that could provide the necessary bank protection.The two locations would be at the "big bend"(pictured)and at the "narrows"as described above. Erosion along the "Big Bend" b.Invasive Species 1)The castor bean that is located on the south side of the Creek just down stream of Marre dam does not provide significant bank protection,and is out-competing native plant species.This could be removed and the bank stabilized with native and deep rooted species.Phased removal and planting will protect banks throughout the restoration process. c.Restoration 1)At the estuary of San Luis Obispo Creek,there is an opportunity to plant native riparian vegetation along a strip of land on the south bank,between th~Creek and the golf course.There is an area here that was graded as part of the golf course construction that is unused for this activity.This strip of land could be planted with little grading of the immediate bank. 2)At the "narrows"there is an opportunity to restore the native riparian vegetation and stabilize the bank along the north side of the ~reek opposite Avila Road. San Luis Obispo Creek Watershed -Hydrology 69 70 3)At the "big bend"there are opportunities for restoration in association with erosion control measures. 4)Remedial restoration between the third an fourth bridge.Restoration efforts undertaken two years ago,as a pilot project in this area,suffered severe flood damage and should be replanted. 5)The removal of the castor bean and other exotics just downstream of Marre Dam could be associated with the planting of native riparian vegetation to help hold the Creek bank. 3.Summary of field measurements Field measurements were not taken for this reach due to depth. .. San Luis Obispo Creek Watershed-Hydrology B.REACH TWO -FROM SAN LUIS BAY DR.BRIDGE TO THE ONTARIO ST. BRIDGE • -Willow encroachment l::.-BaDk erosion o 500 1000 Figure 2.3 -Reach #2 1.Location and general description Reach two begins at the San Luis Bay Dr.bridge and extends upstream to the Ontario St. bridge (Figure 2.3).Along the first 600 feet of this reach the water is still pooled from the Marre Dam,and the channel is highly unifonn. The riparian vegetation along this reach is generally dense and includes mature sycamore and an understory of willow.Adjacent land use in this area is primarily agriculture or undeveloped land just beyond the edge of the riparian vegetation.Avila Road parallels the south side of the Creek downstream of the Sycamore Hot Springs Resort.Adjacent land use has apparently not impacted the Creek corridor in this area. The depth in this stretch ranges from a minimum of .75 inches to a maximum of II feet (at bankfull),with an average measured depth of 1.2 feet.The width to depth ratios (WID)varied from 8.7 to 3.6,which are generally considered good to excellent by the U.S.Forest Service Channel Stability Evaluation Model (CSEM).The variation between these ratios indicates that some areas are worse than others. Moderate amounts of silt and fine sand have been deposited in the lower section of the reach due to decreasing velocity behind Marre Dam.The substrata improves upstream as L// velocities increase,but is still considered poor for steelhead spawning. San Luis Obispo Creek Watershed -Hydrology 71 72 The vegetation in this section is made up of mostly mature riparian forest,85%of which are mature willows and 15%are mature sycamores.The vegetation is less mature in the area immediately downstream of the Ontario Rd.bridge.Willow encroachment is occurring at distances of750',1250'and 2350'up from the San Luis Bay Drive bridge. The channel is naJTowing in these areas leading to some incision.Generally,the vegetation along this reach is good to excellent in the CSEM. The banks in this section are a model of bank stability due to the mature riparian vegetation.Some isolated areas,however,are experiencing very minor erosion.Average bank slopes are 55-70 degrees which are considered fair to poor in the Forest Service model,but the vegetation seems to have mitigated any adverse effects of slope.The overall erosion hazard in this section is relatively low. Additional channel features include the confluence of San Luis Obispo Creek and San Miguelito (See Canyon)Creek,which is contributing a low flow of cool water (60°). The ownership of adjacent lands is divided into 5 holdings.Additional development is planned for an expansion of the Sycamore Mineral Springs.This development will also include another bridge over the Creek.The construction of the bridge may require some removal of vegetation but the project is not expected to have direct impacts on the riparian vegetation.Soil disruption during construction has the potential to erosde and be deposited into the Creek.Mitigation measures should be monitored closely on this site. Adjacent Soil Summary .......................,";"::'.:::"::::::--..:.::..:::"::.":::.";:'::".'.-......"- -.-. Unit·.....><>.><.···.l;rQsiQn·.::":";"..::::;".::":.":.'.:':::,--..".-...-,.......'.",. Numb.~r'···.··$o[lTvpe •····..···.·L~l'1gtlj .··OE!pth >PoteoliaL 170 Marimel Silty Clay Loam 255 Very Deep SIiQht 194 Riverwash 4952 Variable 2.Problems and ()pportunities a.Bank stabilizution The banks in this reach are generally quite stable.Enhancement should center on helping land owners to clear the channel in ways that preserve bank stability. b.Invasive Species This section is particularly impacted by the spread of Giant Reed (Arundo donax),an invasive species.These plants are contributing to significant channel constriction.This species is very difficult to eradicate,but could be controlled by working with the land owners on special Giant Reed eradication methods. c.Restoration Restoration opportunities exist in the area of the Ontario St.Bridge.This area was disturbed during the construction of the new bridge. San Luis Obispo Creek Watershed-Hydrology F L f." 3.Summary of field measurements Actiw Channel Mean 19.2'1.2'11"3.7'36 sand San Luis Obispo Creek Watershed -Hydrology 73 74 C.REACH THREE -ONTARIO ROAD BRIDGE TO SAN LUIS BAY DRIVE Feet E=t Io5001000 Fig.2.4 -Reach # 3 1.Location and general description Reach three extends from the Ontario Rd.bridge,under the Highway 101 bridge,and up stream to the San Luis Bay Drive bridge (Figure 2.4).The adjacent land use is mostly agriculture,except for an area between Highway 101 and the Ontrario Street bridge where a recreational vehicle park abuts the Creek. The downstream end of this reach is similar to Reach #2 with mature riparian vegetation. Upstream,however,the vegetation is predominately young to maturing willow.In several places,willow encroachment has the potential to restrict flow.Vegetation cover along the edge of the Creek ranges from 90%to 100%indicating excellent cover.At several isolated points,however,only grasses cover the banks.Based on a review of aerial photographs from the 1950's,this reach was apparently channelized into a narrow corridor.Sparse vegetation existed along this reach during that time period.Over the past 40 years,the Creek has continued to widen and willow vegetation along the creek has returned.There are,however,no.mature sycamore as are found both upstream and downstream of this reach. While the vegetative cover is good,willow encroachment is becoming a problem.This is happening partly as a result of the depositional nature of this area.Water slows down near the Highway 101 undercrossing and sediment is being deposited.Willows are colonizing the deposition areas. San Luis Obispo Creek Watershed-Hydrology ',;.. The banks in this stretch are generally well protected in the downstream areas.In the upstream section,there are a number of vertically eroded banks where'grasses are the only bank protection.The most impacted areas are those where agriculture is practiced right up to the stream bank.In one section,cattle are allowed access to the creek.Willow encroachment is also contributing to erosion in this area.The bank slopes are relatively steep,which is considered poor in the Forest Service channel model.The good vegetative cover,however,has kept these areas mostly stable. Width to depth ratios range from 4 to 11.8 which fall into the good to excellent range,.but exhibit significant variability.The higher width to depth ratios correspond to those areas on the map showing erosion problems. Other channel features include a fence across the stream at 2020'which has the potential to cause a debris dam depending on flows.The water temperature measured in this reach was 72°.F which is considered high.This is indicative of a lack of canopy upstream. Near the upstream end of this reach,gabion baskets have been used to control erosion. These artificially turn the stream at one point and are causing some erosion on the opposite bank. The ownership is mixed with parcels extending across the Creek.There are about 6 owners in this area,and each manages the land somewhat differently.This has provided an outdoor laboratory in land management strategies.Those landowners that have let the land lay fallow have experienced less stream bank erosion.Land left in grassland for cattle has experienced little surface erosion but has been associated with some stream bank erosion where cattle access the Creek for water.Properties with a history of cultivation have experienced various degrees of bank erosion and land loss depending on the proximity to the Creek and land management techniques.Those areas that have been cleared of willows have experienced the most bank erosion and subsequent loss of adjacent land for agriculture. Adjacent Soil Summary ···NUtrib~1'.....................,. 169 •····•·.•••.·tJnJt ••••··•••·• 194 .........UenathOepth ·..potential Marimel Siltv Clav Loam 3218'Very Deep Slight Riverwash 1711 Sliaht 2.Problems and Opportunities a.Bank stabilization The primary opportunity for bank stabilization along this reach is the area is at the Kruse property.This is the second owner up stream of the Highway 101 bridge.The height of the banks are relatively low at this point but the lack of vegetation along the Creek has caused the creek bank to erode and consume adjacent farmland.After the creek passes thiough the Kruse property it enters a dense willow thicket on the Tannahill property where the flood waters disperse into a broad area. San Luis Obispo Creek Watershed -Hydrology 75 76 b.Invasive Spedes There are significant problems with Giant Reed (Arundo donax)in the area where the Creek crosses Highway 101.The reed is,however,restricted to this one area of the reach. c.Restoration Large trees can be planted all along this entire reach to eventually provide shade on the water.This would lower water temperatures,and enhance the fishery resource.The dense willow thicket at the Highway 101 bridge can be enhanced with some grading and restoration to provide a wetland area away from the flowline of the Creek itself.This will require land acquisition to achieve this level of restoration. Additional work could include clearing willows to reform an active center channel. Careful study of the flows necessary to maintain an active channel must precede this type of work. 3.Summary of field measurements Mean San Luis Obispo Creek Watershed-Hydrology '- D.REACH FOUR -SAN LUIS BAY DRIVE TO THE WOODEN BRIDGE ••• Iream choked ---.t:6L "'W;"'i'" ••,,, ••,,••••••s~ere-A ErosionN,:1 ~8 .~,..9: b-....;;;;;;.:;=.:T~-lf'--)..-..:.&J!.!~~Exoosed banks~(erosion hazard) N t Feet I I I 0 500 1000 Figure 2.5 -Reach # 4 1.Location and general description Reach four extends from the San Luis Bay Drive bridge east of Highway 101 to an agricultural wooden bridge located about 3,200 feet upstream of the San Luis Bay Drive bridge.Land use adjacent to the Creek in this area is in agriculture.An apple orchard was planted along both sides ofthis reach in 1994. The vegetation in this reach changes dramatically as the Creek moves upstream.The lower section is largely barren with some immature willow growth on the banks.The upstream portion contains a more complete cross section of riparian species and age structure. Within the Creek,however,willows are encroaching and becoming established on bars. The bars are a result of sediment deposition from upstream and within the reach,and act to divert the water into the banks.This has resulted in severe erosion in a number of spots along the reach.The vegetation in this reach is ranked as fair by the CSEM. Banks in this section are generally in poor condition.Vertically eroded banks are common and a significant amount of bank cutting is evident.Concrete slabs have been placed on the banks at several locations which have had some success in protecting those areas,but have also prevented riparian vegetation growth and constricted the flow of the Creek. San Luis Obispo Creek Watershed -Hydrology 77 Width to depth ratios range from 6.3 to 14.7.These are slightly higher than the othe'r stretches but still fall into the good category in the channel stability evaluation.They are, however,mostly high.The low 6.3 measurement is in a short,vegetated,portion of this reach. Channel instability in the lower part of this reach could be caused by a number of factors. Historic straightening of the channel may have upset the channel equilibrium.Alterations on the floodplain,such as road embankments,may also be contributing to this instability. The ownership is eonsolidated,and the landowner's support of restoration provides a substantial opportunity for long-term enhancement of the riparian corridor. ,., Adjacent Soil Summary •••·•·••.•·.u~jt •.••_.·••• •••Numbe...••·· 169 2.Problems and ()pportunities >ErosJoh <Lpbt~rlti~1 Sli ht a.Bank stabilization Bank stabilization is necessary in several severely eroded areas.With the cooperation of the single landowner,this is a unique opportunity.This reach of the Creek may require in-stream modification.This means possibly clearing the willows from within the channel,as well as,.adding channel features which create the pools important for fish. b.Invasive Species Invasive species are only a minor concern in this area. c.Restoration Restoration should include the planting of large canopy trees.This can be incorporated with the bank stabilization plans. 3.Summary of field measurements '. ,. ~., ~;;. 78 San Luis Obispo Creek Watershed-Hydrology .... I E.REACH 5 -THE WOODEN BRIDGE TO ACCESS ROAD 1.Location and general description UlHJ8med_ry..~..-.,_r-----:----t-----17 .............••••••••I••".• N 1 Feet I I 1000 2000 Fig.2.6 -Reach # 5 b.Erosion*Exposed Soil (erosion potential)o Rip-rap Reach five encompasses the stretch of the Creek north of the Maino bridge to a second bridge that provides access to the Ray Bunnnell home.The adjacent land uses are grazing and farming. Vegetation along this section consists of a mix of mature and maturing willows and sycamore with 70%-90%coverage.This reach has the best mix of species and age structure between the City and the lower reaches of the Creek near Sycamore Hot Springs.A review of historical photographs show the riparian vegetation along this reach has expanded greatly.The Creek is incising (cutting deeper)throughout this reach,but a number of overflow channels have created a broader riparian corridor. One unique aspect of this reach is that it flows through a narrow opening in the coastal mountain range.This brings a number of differing vegetation types together into a small area creating a zone rich in biological diversity. While the banks are generally stable,some areas of erosion and undercutting are evident. The bank slopes are less steep in this section compared to other sections,but are still considered steep. The width to depth ratios range generally between 4 and 5,which is considered excellent, and the variation in WID is low.There is also some evidence of sediment deposition,but it is mostly intermittent.Generally,reach five is one of the more stable reaches in the lower Creek. San Luis Obispo Creek Watershed -Hydrology 79 The adjacent land is owned by only two owners.Both have indicated an interest in maintaining and enhancing the Creek. Adjacent Soil Summary Unit < •Nu .....ber 169 198 210 2.Problems and Opportunities Loam a.Bank stabiliz:lltion The banks in this reach are generally stable.There are isolated areas of erosion and undercutting,.but the problems are not severe. b.Invasive Species There are invasiv(~species in this reach,but the problem is not as critical as in other reaches. c.Restoration Restoration could involve planting of some larger canopy trees,but this is generally a low priority considering the problems in the other reaches. 3.Summary of field measurements L l r l :. ~. 80 San Luis Obispo Creek Watershed-Hydrology F.REACH 6 •FROM THE ACCESS ROAD TO THE 101 ONRAMP o 500 Feet E""'"""'3 Fig.2.7 -Reac # 6 ..'. Extremely narrow riparian corridor adjacent to agricultural fields I Water highly turbid 11/.++-lL+-Maino Bridge j.•••~~~~••,-',......-+-r+-Bunnel Bridge -"'----=...i-----J- _---\san Luis Obispo Cr.- East bank has severe erosion and bank cutting West bank of entire reach has minimal erosion. N t ..................-....................... 1.Location and general description Reach 6 extends from the bridge that provides access to the Ray Bunnell property to the bridge at South Higuera Street where there is an on-ramp to Highway 101. Land use in this area is agriculture on the west side while lower Higuera and Highway 101 border the Creek on the east side.This section of the Creek that parallels Higuera is relatively short and was moved into its present alignment with the construction of Highway 101.The realignment of this reach has caused continuing bank erosion problems on the west bank. The bank stabilization problems along this reach are compounded by a serpentine rock outcrop that is located at the confluence with Davenport Creek.This occurs at the same place where the South Higuera Street bridge crosses the Creek,and where existing underground pipelines cross through the narrow opening between the rock outcrop and South Higuera.Pipelines are now exposed at this location. Vegetation in this reach is primarily willow,with 85%coverage.Several areas adjacent to agricultural uses lack vegetation.These areas are also experiencing severe bank erosion.At the southern end of this reach,a single line of conifers has been planted on the top of the west bank.They provide canopy,but due to their shallow root structures they do not provide much bank stabilization. San Luis Obispo Creek Watershed -Hydrology 81 82 Where the riparian corridor is well established,the banks are in good condition.The bank slopes are,however,very steep in the upper section of the reach and subject to some intermittent bank cutting.Some sections of the left bank have been stabilized with nprap. The width to depth ratios range near 3.5,the lowest of any reach in the lower creek.It is also the deepest channel in the lower Creek. The water in this section is very turbid and there is evidence of significant silt deposition. The ownership is divided among four people.As with other reaches of this main stem of the lower Creek,the participation of landowners provides a long-term opportunity for restoration and bank stabilization. Adjacent Soil Summary I.Jnit·••..•. •Number .•.. 169 131 197 2.Problems and Opportunities a.Bank stabilization Bank stabilization is necessary along most of the south side of the Creek (or the right side as you progress upstream).The section shown on the following page suffered damage in the 1995 storms,and remains unstable.There is no riparian vegetation to stabilize the banks,and no upper canopy trees to shade the water.This section floods under higher flows,and the high flow velocities contribute to scouring of the topsoil. With a single owner,this is a good restoration opportunity. The most critical need in this reach is to develop a coordinated restoration approach for the intersection of Davenport Creek and San Luis Obispo Creek.There are a number issues and constraints to address in this area including exposed pipes,channel constriction by roads,and a steeper flow gradient. b.Invasive Species A minor problem in this area. c.Restoration This section,too,has few established canopy trees,and would benefit from more riparian vegetation. San Luis Obispo Creek Watershed-Hydrology ,- r; ,.. Severe erosion and scoured agricultural land. 3.Summary of field measurements 10 mm30' Mean ..'."....',_.---_._-.._..~,",.,'~ ..····,···..·.····.u '.._..,"._...._>4 ",,,"',._....._,~<>"_>_.......................,-",. 3.2' ................ 19.1 San Luis Obispo Creek Watershed -Hydrology 83 84 G.REACH 7 -HIGHWAY 101 ONRAMP TO L05 0505 VALLEY ROAD N l Feet I I ::J 0 .1 .2 1.Location and general description Reach 7 begins at the South Higuera Street bridge and ends at Los Osos Valley Road. This reach is divided into three separate sections.The lower section parallels South Higuera and is spnrsely vegetated.The middle section passes through agricultural fields on both sides and has a narrow band of riparian vegetation.The vegetation in this sec- tion is composed largely of native species but the strip of vegetation is very narrow and lacks canopy cove:r.The upper section,where it approaches the Los Osos Valley inter- section,is composed of dense willow vegetation and giant reeds. Land use in this s(~ction is agriculture.The Creek is shallower and wider in this reach than the others.The channel,however,is incised and relatively deep.This stretch also meanders more than the previous reaches. The riparian vegetation along this reach is generally thin and provides only fair bank protection.A large section of the middle portion of this reach suffered severe erosion during the winter stonns of 1995.Several areas are only covered by grasses and are experiencing significant erosion.Willow encroachment has the potential to choke the Creek if not cleare:d back. San luis Obispo Creek Watershed-Hydrology ;.. V I l ""'1 j, The banks are mostly in good shape,but are cut in several areas where grasses are the only bank protection.Some intermittent sediment deposition is occurring as well.Bank slopes are lower in this area than other areas,but are still considered fair to poor in the CSEM.Width to depth ratios range from 5 to 10.The higher ratios correspond to areas of degraded bank vegetation and erosion. The adjacent lands in the undeveloped part of this reach are owned by only two people. The lots are small where the Creek enters the city. Adjacent Soil Summary •··•..•I..Jl1it •....,,.,.,.Number'·······.... 169- 197 2.Problems and Opportunities a.Bankstabilization Bank stabilization is the greatest need in this reach.Heavy rains during the storms of 1995 lead to numerous bank failures.Flooding is common in this area,and in order for the banks to withstand future floods,they should be restored.Flooding at this point poses a very high erosion threat to the tilled agricultural soils. These banks have been damaged by fast moving water.Revegetation will reduce the risk offuture damage San Luis Obispo Creek Watershed -Hydrology 85 b.Invasive Species There are many invasive species in this reach.The section near Los Osos Valley Rd.is particularly impacted. c.Restoration Restoration is necessary throughout this reach.Large canopy trees could be planted along with bank stabilizing plants.Willow removal from the main channel near Los Osos Valley Rd.is also suggested. 3.Summary of field measurements 86 San Luis Obispo Creek Watershed-Hydrology H.REACH 8 -LOS 0505 VALLEY ROAD TO PRADO ROAD --.••Vcr, Fig.2.9 -Reach #8 I'ro\lOS8d8FEMA406 Projec:lll CIty of San Luis Obispo Entire.reach is severely eroded with very poor to non-existant riparian vegetation N t .".,, --' 1.Location and general description This section begins at Los Osos Valley Rd.and ends at Prado Rd.Land uses include agriculture,housing,and public facilities.This reach is visibly the most impacted section of San Luis Obispo Creek. Vegetative protection in this reach is particularly poor ,consisting of scattered maturing willows.Areas of development have left the banks devoid of vegetation creating severely unstable conditions.Canopy cover is sparse to nonexistent which is contributing to unusually high water temperatures (70-8ooF).Periodic removal of vegetation in this area for flood control has also exacerbated erosion problems. Bank conditions are very poor in this area with vertically cut banks along most of this reach.In some areas,vertical banks reach as high as 20 feet and 100 feet long.In many places along this reach the channel bottom has reached bedrock,so high flows tend to cut banks rather than continue to incise an already incised channel.Channel incision has also confined the flows within the channel,increasing flow velocity and erosion potential. The ownership along this reach is divided between city ownership on the north side, which facilitates some access to the Creek,and many smaller lots (mobile home park plus established residential subdivision)on the south side that complicates access to this side. San Luis Obispo Creek Watershed -Hydrology 87 88 The history of erosion in this reach has resulted in a series of proposed projects by the City to stabilize the banks.There are a number of critical areas where public and private property is being threatened. A critical spot that can be seen from the adjoining public roads is where the Creek approaches Prado Road.The strawberry field on the south side of the Creek is immediately adjaeent to a high vertical bank that will continue to erode and cut into the agricultural field.(see photo p.89) Adjacent Soil Summary 2.Problems and Opportunities a.Bank stabilization Bank stabilization is critical in this reach.As the photo illustrates,erosion is threatening many creekside a(:tivities.Much of the erosion in this area is so severe that stabilization will probably require bank grading and artificial protection.These projects should utilize methods that combine the protection of the lower banks to prevent undercutting and planting the upper banks to provide stabilization and habitat cover.In addition,rock protrusions from the base could be incorporated to decrease flow velocities and create scour pools for migrating fish. The City of San Luis Obispo is currently pursuing four bank protection projects in this reach.These are marked on figure 2.9.The Land Conservancy will be working with the City to provide additional information necessary for permit approval.We will also attempt to find and propose innovative project designs which will enhance the riparian corridor and protect property while meeting the City's engineering standards. San Luis Obispo Creek Watershed-Hydrology I.:: !: ~; '-- High vertical banks are common in this reach. b.Invasive Species Invasive species are present along this reach but are the least of the problems.As individual restoration projects are undertaken,there will be opportunities for the removal of exotic species. c.Restoration Restoration efforts should focus fIrst on protecting the very few areas that are in acceptable condition now.Areas that have been improperly cleared in the past could be restored fairly easily.Since there is little riparian vegetation in this reach,and the highest temperatures were taken here,it is clear that canopy cover should also be established. 10.5' 3.Summary of field measurements 6 mm San Luis Obispo Creek Watershed -Hydrology 89 I.REACH 9 -PRADO ROAD TO MADONNA ROAD r 1 N r i ! ,. , t l P!1l\lOI8dIf:,FEMA 406 ProjeclI City 01 Son luis Obispo ,,,,,, Pretumo Cr......'--......:,,, I I I I,,, Entire re~lch is severely eroded with very poor to non-existant riparian vegetation Feet e-----3 Io5001000 Fig.2.10 -Reach #9 1.Location and general description Reach 9 begins at Prado Rd.and extends up to Madonna Rd..Adjacent land uses include some agriculture,commercial development,public facilities,and the cemetery.This section is much liike reach 8,with most of the banks suffering from erosion and bank cutting.Encroaching development is more dense in this section,and much of the riparian vegetation has been removed or degraded. ,. f. Vegetation is sparse to nonexistent in this reach.Not only has this contributed to the extreme erosion,but it has left most of the Creek without a canopy.The water temperature was very high (800 F),which is significantly warmer than downstream reaches.Willow (~ncroachment on lateral bars within the channel are a problem in the lower section of this reach.Some channel constriction caused by Giant Reed is evident in this reach,most notably in the section just downstream of the Madonna Rd.bridge. r L The channel is incised for most of this entire reach,and the banks are very unstable.The width to depth ratios range from 8.5 to 10.7,and are among the highest in the watershed. This indicates that erosion and bank failure is more consistent in this reach than in most of the others.Deposition is occurring on lateral bars in areas where the channel is wider and flows are slower.The banks here are also a popular dumping ground and there is a significant amowlt of concrete and garbage in the channel. The ownership is various and complicated.Several significant reaches,however,are under single ownership which provides some restoration opportunities. 90 San Luis Obispo Creek Watershed-Hydrology Adjacent Soil Summary -.'"'..... '.'...:::~.::~:::'..~..:;.'.: :..:::.."':':.::'..Onlt .NJl'r'lbet".·SQilTpe 197 Salinas Silty Clay Loam 0-2%slo es 2.Problems and Opportunities 5000'Very Deep Slight a.Bank stabilization As with the previous reach,bank stabilization is necessary along much of this area. Some eroded banks are over 20 feet tall. The vertically cut banks and severe erosion in this reach are among the worst in the watershed.Along many of these banks development has encroached to a point where there is very little space in which to undertake restoration.The Valley Vista Mobile Home Park,for example,has no more than 2 feet of bank top left.In order to restore areas like this,either the channel must be partially filled in or the trailers will have to be moved back to allow grading of an appropriate slope. b.Invasive Species Giant Reed is a problem in this reach.Work on removal of these plants has been unsuccessful to date.Repeated spraying has not significantly affected these plants.These plants need to be physically removed with caution,so as not to let plant remnants enter the Creek.The stumps can then be sprayed with greater effectiveness. c.Restoration Restoration in this area should concentrate on establishment of upper canopy cover.Bank restoration could accompany any stabilization projects as well. San Luis Obispo Creek Watershed -Hydrology 91 3.Summary of field measurements Active Channel Mean ~~!t~~~~t5~~~:!!~~~~~§~~~."~~ 10.3'.08'7"3.8'55 deg 40 deg 35'6 mm 92 San Luis Obispo Creek Watershed-Hydrology J.REACH 10·MADONNA ROAD TO STENNER CREEK o Feel I 500 ProposedIi!.FEMA 406 Projects City of Sen Luis ObispO* -Benk Cutting end exposed soil D..Erosion o .Geblon Baskets • -Willows in channel N 1 1.Location and general description Reach 10 extends from the Madonna Rd.bridge at Hwy.101 to the confluence of Stenner and San Luis Obispo Creeks (near the intersection of Marsh and Higuera Streets).Land use along this stretch is primarily commercial and residential development.In most sections,development occurs right up to the banks. Vegetation is sparse with a few areas containing mature riparian plants.Most of the banks are covered with herbaceous plants.These do not,however,provide significant canopy and the temperatures measured were very high (75-80 degrees F).Willow encroachment is also occurring in several places,and nuisance algae is prominent. The channel is incised for almost the entire reach ,and width to depth ratios range from 8.5 to 10.7.The channel appears to be more stable than the WID numbers indicate due to the prevalence of bank protection structures (gabion baskets,concrete walls,cement sacks,etc.).All the bank protection has lead to higher flow velocities which tend to do more damage to adjacent unprotected banks,and banks in the downstream reaches.The increased velocities are also responsible for a decrease in sediment deposition. The City of San Luis Obispo has recently purchased a large piece of land along the banks south of the Marsh St.freeway off-ramp that will be restored and used as a park.This San Luis Obispo Creek Watershed -Hydrology 93 will involve removal of numerous buildings and much debris from the area immediately along the bank.This will leave the banks exposed temporarily,but could result in a vastly improved riparian corridor depending on the restoration design. Adjacent Soil Summary .. Unit ....... Number:...sc)Ul'ype 198 Salinas Silty Clay Loam 2-9%slopes 2.Problems and Opportunities ··LengthDepth 3842 Very Deep Erosion Pot~ntlal Slight- Moderate " a.Bank st.abilization Bank stabilization is important in this reach,but encroachment has left very little space for restoration effbrts.Since the channel is narrow and deep,with high water velocities, some bank protection will be necessary. The City of San Luis Obispo is currently pursuing a project in this reach,but it is currently on hold pending some additional study.The proposed site may require some structural reinforcement,but could include biotechnical designs,revegetation of the upper banks and provision of fish habitat improvements. b.Invasive Species There are significant stands of Giant Reed throughout this reach,some of which are contributing to channel constriction.These are not routinely removed by flood control crews because of the risk of their speading. c.Restoration Restoration opportunities are slim in this reach because it is so highly encroached upon.r Planting of upper hanks could enhance any bank repair.to. 3.Summary of field measure- Active Channel Mean 94 11.2'.08'8'2.3'80 deg 75 deg 40'gravel San Luis Obispo Creek Watershed-Hydrology , i ..... 1 1 0'.'~ K.REACH 11 -STENNER CREEK TO THE CALIFORNIA STREET BRIDGE 1.Location and general description Reach 11 encompasses the area from the confluence of Stenner Creek to the California St.bridge at San Luis Dr.The Creek runs under the City through part of this reach from the Mission plaza to the area between Marsh and Higuera Streets (see map).Surrounding land use is urban development. The banks throughout this reach are mostly armored,and vegetation is sparse to nonexistent.Much of the sparse vegetation is made up of invasive,nonnative species. Vegetative canopy cover is variable.Erosion is minimal due to the extensive artificial bank protection.Sediment deposition is also minimal as the channel has been narrowed to the extent that the high velocities carry the sediment downstream. The width to depth ratios are low for this reach because development has created narrower and deeper channels. The ownership is varied with numerous small lots.This makes any large-scale restoration effort difficult.In addition,the high flow velocities,and variability of flow in storm events,will pose a threat to any restoration efforts that involve vegetation planting. San Luis Obispo Creek Watershed -Hydrology 95 (,'Adjacent Soil Summary ht ht Slight - Moderate Moderate Erosion ,!Potentiaf, 350' 2291 1335' 2782' Salinas Silty Clay Loam 0-2%Sio es Salinas Silty Clay Loam 2-9%slo es Los Osos-DiabloCom lex Conee cion Loam 2-5%Sio e 162 198 120 197 Unit,:: ,:N:yijj:6:e:r::;'.'...':.,:'i.:S,dll,'[",.Et :.. Note:Much of this has been paved and developed 2.Problems and Opportunities a.Bank stabilization Bank stabilization projects in this reach will be difficult to successfully implement due to the varied ownership and high flow velocities.In order to secure banks in this reach, bank protection should employ modem bio-technical methods.The City of San Luis Obispo tracks problems in this area,and is currently pursuing the expansion of Mission Plaza between Broad and Nipomo Streets.This project will result in bank stabilization, and can incorporate revegetation. b.Invasive Spedes Invasive species are common in the section of this reach that have vegetation.They are not,however,causing flow constriction and erosion.They channels are regularly cleared for flood control purposes. c.Restoration Restoration oppOltunities are very limited in this reach. 3.Summary of field measurements r, !t.: gravel rt •• 96 San Luis Obispo Creek Watershed-Hydrology L.REACH 12 -CALIFORNIA STREET BRIDGE TO ANDREWS ST.BRIDGE o Armoured Banks •Erosion I Exposed Soil . /.....k--'oo".... ....... Bedrock Channel/! V.:•n.•••.~......·······~ .j Fig.2.13 -Reach #12 1.Location and general description This reach begins at the California St.Bridge and ends at the Andrews St.bridge.It is the shortest of all the reaches studied.Land use in this section consists of residential development which has been built right up to the Creek banks. Much of the channel in this reach has been vertically cut,and flow velocities are high. The bridges at each end of this reach constrict flows,and are contributing to localized bank erosion problems.Relative to reaches 10 and 11,however,this section has a higher channel capacity and more bedrock in the channel.It is,therefore,a little more stable. Along sections with artificial bank protection,there is an absence of vegetation.Where left unprotected,the lack of woody vegetation has left banks eroded.Invasive species are also present in vegetated areas,but like reach 11,they are periodically removed for flood control. The ownership is highly varied which limits larger scale restoration efforts.There are also many owners with water pump intake pipes in the Creek.The water is being withdrawn for landscape watering.The cumulative water withdrawal is unknown. Width to depth ratios are among the lowest in the whole watershed,indicating stable banks.This is due mostly to bedrock in the channel and artificial bank protection.There is,however,less bank protection in this reach than in reach 11. San Luis Obispo Creek Watershed -Hydrology 97 Adjacent Soil Summary :U:n--.·t--_:--:.;::'::"": -.:::::;...;":'.: HNUmbe.i' 121 197 2.Problems and Opportunities Erosion _PotEmtial Moderate a.Bank stabilization Bank stabilization projects will be difficult to implement in this reach because of the multiple ownerships and high flow velocities.Stabilization in this reach will most likely require artificial bank protection.Modern bio-technical methods may be an option as well. b.Invasive Spedes Invasive species are prominent in this reach,but regular clearing for flood control has decreased their impacts. c.Restoration Any restoration work would be placed in jeopardy by the high flow velocities during storm events.The lack of adequate restoration space would inhibit restoration efforts. 3.Summary of field measurements r i l, r l.. 98 San Luis Obispo Creek Watershed~Hydrology M.REACH 13·ANDREW STREET BRIDGE TO HIGHWAY 101 CULVERT 1000 Erosion I Exposed Soil Rock Dam Armored Banks I "1 o 500 • •'*o N 1 ••'Cl• "vI'rJ.'If .....-., o~'Ii "~'Ii-Jf ....oJ "sfJ(I,'~", •••~.'•••, $~.-- III ,.' .~FOOIBrid Fig.2.14 -Reach #13 1.Location and general description This reach extends from the Andrew St.bridge to the Highway 101 tunnel above Cuesta Park.Land use in this area is primarily residential development on the lower part,Cuesta Park in the middle section,and Highway 101 on the upper part. The banks have been reinforced by gabions in several places where erosion is occurring. There is also an increase in bedrock in the channel in this reach,which due to it's irregular shape,slows down the flow somewhat.This,in tum,has lead to more silt deposition.Vertical bank erosion is evident in areas where there is no artificial bank protection. Riparian vegetation improves in this reach compared to the downstream reaches.Canopy cover increases towards the upstream section of this reach,near Cuesta Park. The ownership,like the other urban reaches,is divided up into multiple small holdings. Like reach 12,many of the landowners along the Creek are pumping water for landscape irrigation. .... \ \ San LUis Obispo Creek Watershed -Hydrology 99 Adjacent Soil Summary Unit SoU Type .Length Depth .Erosion Number Potential 121 Concepcion Loam 5-9%Slope 3690'Very Deep Moderate 2.Problems and Opportunities a.Bank stabilization Encroachment and varied ownership would make significant bank stabilization in this reach difficult. b.Invasive Specnes Not a significant problem in this reach.Vegetation is regularly cleared. c.Restoration Restoration opportunities are limited to small areas in single ownership.Encroachment and channelization are major obstacles to restoration in this reach. 3.Summary of field measurements ,. r.f i;. 100 San Luis Obispo Creek Watershed-Hydrology N.REACH 14·HIGHWAY 101 CULVERT TO RESERVOIR CANYON ROAD /:;.Erosion ond Cut Bow*RodcOom •_E"""",ctvnont o Bonk Annour o .............................. Fig.2.15 -Reach #14 1.Location and general description From the Highway 101 tunnel above Cuesta Park,Reach 14 continues to Reservoir Canyon Rd.This reach is upstream of the urban development of San Luis Obispo,and land use is mostly grazing and open space. Bank condition is variable in this section,and is reflected in variable width to depth ratios from 6.3 to 14.7.Areas of severely eroded banks coincide with cattle grazing,and have higher width to depth ratios.Improving riparian vegetation in some sections has stabilized the banks fairly well.Concrete slabs which have been placed on the banks in several places have held those banks. Most of the adjacent lands in this reach are in a single ownership,which presents an excellent restoration opportunity if the owner is willing to participate. This reach will be particularly impacted by upcoming construction and grading associated with the State Water Project.If erosion control measures are not effective,the relatively low water velocities in this reach will allow sediment to be deposited.Two other projects in this area will compound this problem.One project will involve grading and soil removal for the placement of a UNOCAL oil pipeline from the Santa Margarita Ranch area to San Luis Obispo.Another is the reopening of a culvert which allows flow from the hills alongside Highway 101 to continue under the freeway.The culvert has been blocked by excessive sedimentation (30'deep).Opening the pipe may let significant sediment loads to continue out of the current sediment trap and into the Creek. ~ ~ 1 ! ·tlf L ;\ \'. San Luis Obispo Creek Watershed -Hydrology 101 Adjacent Soil SUlmmary Unit Soil Type Length Depth.Erosion Number Potential .. .,. ••• :.:.,.... 183 Obispo-Rock Outcrop Complex 1500'Shallow Very High15-75%Slope 194 Riverwash 2200'Slight 2.Problems and Opportunities a.Bank stabilization Bank conditions vary widely in this reach and stabilization is necessary in several degraded sections.The single ownership of the adjacent land makes larger scale stabilization efforts possible,if the owner is interested in cooperating.Since there is little development encroachment,there is ample space for stabilization efforts. b.Invasive Species Invasive species can be found in this reach,but are more isolated.They are not posing a significant encroachment threat. c.Restoration Restoration in this section can include changes in management practices.An off-Creek water supply should be developed away from the channel so cattle can be restricted from the Creek.The single ownership makes this a good possibility. 3.Summary of field measurements r;:. ..; -, ,. , ~. 102 San Luis Obispo Creek Watershed-Hydrology O.SUMMARY OF RIPARIAN CONDITIONS Riparian conditions were surveyed throughout the San Luis Obispo Creek Watershed.More emphasis was placed on the main stem of San Luis Obispo Creek because there were fewer access limitations,and because funding limited extensive study of the tributaries.The tributaries were,however,surveyed at a cursory level. The main stem analysis was undertaken to identify trouble spots along San Luis Obispo Creek and address the causes of these problems.The results suggest that the most adversely affected areas are downstream of the San Luis Obispo urban area,and that most of the degradation along the whole main stem is human induced.The primary problems are bank erosion and subsequent sedimentation.Encroachment by willows is also a common problem. In more isolated areas invasive species such as Arundo donax (giant reed)are choking the stream and out-competing native species. Within the City of San Luis Obispo,structural encroachment has led to narrowing of the stream channel and an increase in water velocities.The prevalence of impervious surfaces has also contributed to increased flows.These factors are responsible for much of the bank erosion in these reaches and immediatly downstream of the City.In areas outside of the City, cattle grazing and agricultural grading has resulted in significant degradation of riparian vegetation and subsequent erosion.Along most of the main stem,vegetation clearing for flood control has contributed to erosion as well. As a result of the main stem study,the reaches have been ranked for their relative restoration needs.Reaches 8 through 10,downstream of the city,were rated as the worst in riparian corridor condition.This is where main stem restoration activities should be concentrated. Much of the restoration can be acomplished with revegetation,while some severely eroded sections can be approached with innovative bio-technical solutions. Together with the main stem analysis,the sub-watershed analysis was used to evaluate restoration needs,opportunities,and constraints.Each of the subwatersheds,except those draining into Laguna Lake,have the potential of delivering fine sediment to the main stem of San Luis Obispo Creek.Several sites along tributaries were identified as needing restoration work. Much of the East Fork tributary and Davenport Creek are being affected by cattle grazing and channel clearing for agriculture.They have been left devoid of vegetation,resulting in erosion and high water temperatures,and are sources of excessive sediment loads resulting from cattle access and farm run-off.These problems can be addressed with management practices in combination with revegetation. Reaches of Stenner Creek on the Cal Poly campus have been identified as severely eroded. This sediment can be transported to the main stem of San Luis Obispo Creek.An excellent oportunity exists to work with Cal Poly to improve conditions along Stenner Creek. San Luis Obispo Creek Watershed -Hydrology 103 VI.THE HYDROLOGIC MODEL A.METHODOLOGY In addition to the field studies of the riparian corridors,hydrologic modeling analysis was applied to the watershed using a model developed by the Army Corps of Engineers. The modeling simulates the existing conditions for comparison with simulated discharges from a pre-urbanized watershed condition.The purpose of this modeling was to determine two things.1)Did the urbanization aggravate the peak flow of the floods and;2)Would the urbanization of the watershed send the flood waters downstream before the flooding from above hit the city. The figures below illustrate that urbanization has increased the peak flood flows.If the urbanization had an impact on the timing of peak flows hitting the city,we would expect to find two flood peaks in the model.On this point the results of the modeling were not conclusive,and only ]peak flow was observed. Hydrographs were generated for lower San Luis Obispo (SLO)Creek,between the conflu- ence of SLO Creek and Prefumo Creek and the confluence of SLO Creek and San Miguelito Creek.The analysis was run for a 10 yr.,6-hr.storm and a 10 yr.,24-hr.storm.The two separate scenarios analyzed were:1)Using the existing land use,and 2)Simulating a natural condition by replacing existing developed and agricultural fields with a combination of natural cover consisting of equal parts of woodland,grassland and chaparral.This was done to in order to approximate the effects of man-made changes on the storm response of the watershed.This is not a detailed analysis and the values derived during the analysis should be used only for relative comparisons.Although the model output has been checked against flow estimates based on field observations,there has been no systematic verification of the model output with actual data collected in the field.While it gives a good representation of the watershed's dynamics,a more detailed model is required if more accurate results are desired. The model was developed using the U.S.Army Corps of Engineers HEC-I "Flood Hydrograph Package"computer program.The watershed was divided into 15 subbasins (see sub-watershed analysis)and one reservoir (Laguna Lake).A schematic of the final model is shown in Fig.3.1. r r :~,,. •.. . 104 San Luis Obispo Creek Watershed-Hydrology .Upoe ....S-::E?'·H""Ie ....C:"-eel-< 'A' RO ....1:;ng AE RO ....1:,r,g BE S1:enne..-c..-e~,L;NO"-1:""SLO '.'1 I i 'E' RO ....1:,ng EM ::'1:y ! 1 ....00,.,C..-eekt-i --+-__~i [051;FO"'''SL.O ::..-ee,,: I 'L'i 1-1 ",-'~ ROVl1;,ng MN r-'----11 Lowe'"SLD c ...eeki I Sen M:C!Vlel:'to C,.el?kl____j 'N',I 'd· Son Luis Obisoo Cr~ek Watershed Figure 3.1 Hydrologic Model Schematic Note that there is no "f'sub-basin.This was combined with the "L"sub-basin during the analysis process.Also note that Harford Creek Sub-basin was not included in the analysis since it is downstream of the area of interest and empties into the intertidal zone. Lastly,the hydrographs at the confluence of SLO Creek and San Miguelito Creek do not include the discharge from San Miguelito (See Canyon)Creek. Basic data for the sub-basins is given in table 3.1.The equation for calculating the "time of concentration")for the sub-basins is as follows: Ic =0.00013 LO.77 S-0.385 One of the key parameters within the model is the Soil Conservation Service (SCS)curve number for each Sub-basin.The SCS curve number is a function of the hydrologic soil group and land use.The curve number determines the rate and amount of runoff.The higher the curve number,the higher the amount of,and the faster the rate of,runoff. Curve numbers were developed for each Sub-basin by overlaying a soils map with a land San Luis Obispo Creek Watershed -Hydrology 105 106 use map to obtain the percentage area of each Sub-basin covered by each hydrologic soil group and land use category.Based on these percentages,a cumulative curve number was arrived at for each Sub-basin.These curve numbers were then used in the model. The watershed is chiefly composed of hydrologic soil groups C and D.Groups C and D have slow infiltration rates and thus have a high runoff potential.The land use categories consisted of woodland,grassland,chaparral,developed and agricultural fields.The curve numbers used in the model are listed in table 3.2. For the simulated natural condition,the developed and agricultural fields were assumed to be equal partS woodland,grassland and chaparral.Theoretically,this assumption gives lower values for the Sub-basin curve numbers which can cause decreases in the peak flows and can cause the peaks to occur later than the peak flows for the existing conditions.Table 3.3 shows the SCS cUrve numbers 2 used for each Sub-basin and each analysis scenario. Table 3.2 •••L -. ··BasinArea Length'.·S-Slope Tc -Tlme·ofSub-Basin·.Name ••• (tiq~in(;).·..·...of .....of Concentration ..+C?6g,sl ·Channel· ·Charinel •..••.... A -UDDer StEmner Creek 5.73 30000 0.07 0.993 B -Upper SLO Creek 5.43 23000 0.08 0.795 C -Brizziolari Creek 2.91 18000 0.07 0.674 o -Reservoir Canyon 4.86 18500 0.13 0.549 E -North SLO City 3.08 18000 0.03 0.941 F -Lower StElnner Creek 2.41 16000 0.09 0.577 G -LaQuna Lake 9.5 24000 0.04 1.109 H -South SLO City 2.73 17000 0.07 0.654 I -East Fork SLO Creek 12.3 38000 0.02 1.846 K -Prefumo Creek 3.9 24000 0.06 0.931 L -Froom Creek 3.4 23000 0.04 0.985 M -DavenDort Creek 6.85 34000 0.02 1.928 N -Lower SLO Creek 8.74 31000 0.04 1.29 o -San Miauelito Creek 7.97 31500 0.04 1.253 P -Harford Creek 4.45 24000 0.07 0.858 Laguna Lake was modeled as a reservoir routing.The lake was assumed to be full and even with the lakt:'s outlet (118 ft.elevation).The outlet's elevation was obtained from Wayne Peterson of the City of San Luis Obispo.The outlet width was measured as 44 ft. and the coefficient of discharge was assumed to be 43 •The support structures under Madonna Road were not modeled.Good correlation between the predicted outlet dis- charge and known data was obtained,with predicted discharges of 915 cfs at 121 ft. stage and 1030 cfs at 121.25 ft.stage versus an actual discharge of 1000 cfs at 121.2 ft. stage. San Luis Obispo Creek Watershed-Hydrology ~" '""1, Table 3.3 '...::.,.,..:····S·'C""S'"C"..··N·:···"b'...:..,"i...;:.:.,.....:...u:rve:um·er. :;.'....::.:.:,','.:·::::::S·lmulate:d I,"·,·.··.:.•:·:.·.·.,·.i:···:··..:·.:.:···::.:•••:·.·;·:···.:..:.,·.i.·•.•·;····.i •.•.••·..!·:.·.:.:i •••:::;••;i'.,:.;.:.:.:.~.~.~.~·~·~·...··;.:::..i.:.••)••.;·".·,:~.~·~.·~·li···:..•:...:••,.:•.,.~!:..;.;S,ub'!iSasin.,:,,..Col'ld.itions,."O.ondfticm.s.". A -Upper Stenner Creek 81 81 B -Upper SLO Creek 78 78 C -Brizziolari Creek 81 79 D -Reservoir Canyon 80 79 E -North SLO City 84 79 F -Lower Stenner Creek 86 76 G -Laouna Lake 82 81 H -South SLO City 87 79 J -East Fork SLO Creek 84 80 K -Prefumo Creek 77 77 L -Froom Creek 81 79 M -Davenport Creek 82 78 N -Lower SLO Creek 80 79 0-San Miguelito Creek 77 77 P -Harford Creek 76 76 B.SUMMARY OF HYDROLOGIC MODELING ANALYSIS Hydrographs for the four scenarios analyzed in this report are presented in'charts 3.1.1 - 3.2.2.The hydro graph analysis is summarized in table 3.4 below. Table 3.4 .:":-,,";"":;'::.'.::..:::.:::'.':..":.: ....'..,....,.""ConfluenceofPrefurnOCteek :,conflu~Il~C)f$Iic)Cre~ka"'(j .........................",,. :.::::::':..::::.;::::".'..::::::,::.:>::::::::..::::::::::::"'.:..::........... ...... .:....::.::...':.:...'.'..... ...':SanNliguelitb>9reek ..andSLO:CreekLand,. Condition··.......------,.~=~~~~~~~---~~-~~~~~~~Peak Flow Tot.Not.·.:."..,..Peak Flow Tot.VOl..........'... 'Timeof Peak (cis)•.'.(eu.feet)'TJmeofP~~k'.Ads).;feu,Feet) 10 Yr.,6-hr Natural Day 1,0405 7,384 105,588 Day 1 0625 10,507 187,321 Existino Dav 1,0405 8,624 117,799 Day 1,0615 11,988 212,961 .'.Chanoe o min .16.80%11.60%-10 min.14.10%13.70% 10 yr.,24-hr Natural Dav 1 1300 10949 257382 Dav 1,1445 15753 455,447 Existino Dav 1,1300 11 967 275129 Dav 1,1445 17204 492777 Chanoe o min.9.30%6.90%o min.9.20%8.20% San Luis Obispo Creek Watershed -Hydrology 107 108 Peak flows have increased about 15%for the 10 yr.,6-hr.stonn,and about 9%for the 10 yr.,24-hr stonn,between the simulated natural conditions and the existing conditions. Stonn flow volumes have increased about 12.5%for the 10 yr.,6-hr.stonn,and about 7.5%for the 10 yr.,24-hr stonn,between the simulated natural conditions and the existing conditions.This indicates that development and agriculture have increased stonn runoff compared to natural conditions,thereby contributing to higher peak flows and higher stonn tlow volumes during stonn events. There is no signifi.cant shift in the time of peak between the existing and natural conditions for the storm events analyz~d.This indicates that the rate of runoff may be controlled more by the geometry of the watershed and its subbasins than by the various land uses and con'esponding hydrologic soil groups. The model 9utput for a 25 yr.,24-hour storm was compared with peak flow estimates for the March 10,1995 stonn which flows were estimated to be equivalent to a 25 year storm event.The peak flows were estimated using Manning's equation and data collected in the fidd.The peak flow estimate for the Stenner Creek,due north of the KVEC Radio Tower,was 3,577 cfs using Manning's equation versus an estimate of 3,129 cfs using the model for the Upper Stenner Creek Subbasin.The peak flow estimate for SLO Creek,north of San Luis Bay Drive,was 32,725 cfs using Manning's equation versus an estimate of25,826 cfs,summing all flows at the outlet of Davenport Creek in the modd.Given the uncertainties in both the model and the estimates obtained using Manning's equation,there is a reasonable correlation between the model and some of the estimates made using Manning's equation. Conclusion This modeling effort has shown that flood peaks.may have been exacerbated to some extent due to urbanization of the middle and lower SLO Creek Watershed.The assumptions made in the model,hoever,leave some uncertainty in the results.What cannot be ascertained is just how significant these peak flow increases with respect to increases in flood elevation and erosion along lower SLO Creek.However,this analysis does suggest that the present degraded channel condition may have been aggravated by rapid urbanization over the last decade.Additional analysis may be warranted to evaluate whether urban stonnwater detention would significantly reduce in flood elevation and erosion in lower SLO Creek. 1 Brooks,Kenneth N.,eta!.1991.Hydrology and the Management o/Watersheds.Iowa State University:Ames,Iowa.Pg.326. 2 USDA Soil Conservation Service,1986.TR 55 -Urban Hydrology for Small Water sheds.Pgs.2-5 through 2-8. 3 Albertson,Maurice L.,eta!.1960.Fluid Mechanics for Engineers.Prentice Hall,Inc.: Englewood Cliffs,New Jersey.Pg.475. 4 Reis,Gregory J.,1995.The Estimation o/Peak Flows During the March 10,1995 Storm on San Luis Obispo Creek,Tassajara Creek,Stenner Creek,Chorro Creek and Brizziolari Creek Using the Manning Equation.California Polytechnic State Univer sity:San Luis Obispo,California.Student Senior Project.Pg.33 and 44. San Luis Obispo Creek Watershed-Hydrology 14000 12000 10000 8000 ia 6000 4000 CHART 3.1.1 10 yr.,6-hr Storm Hydrograph Confluence of San Luis Obispo Creek and Prefumo Creek - --Existing Conditions ---Simulated Natural Conditions Time·from atart of Itorm (HourMlnDay) CHART 3.1.2 10 yr.,6-hr Storm Hydrograph Confluence of San Luis Obispo Creek and San Mlquellto Creek14000 12000 .' -;: 10000 8000 :i .!!. CJ 6000 4000 2000 0 -C>t;-o ~i -0 ii-0 N c>t;- O - --Existing Conditions ---Simulated Natural Conditions Nole:Does nollnclude discharge from San M iquelilo Creek ..J ...' Time·from "ert of storm (HourMlnDey) San Luis Obispo Creek Watershed·Hydrology 109 CHART 3.2.1 10 yr.,24-hr Storm Hydrograph Confluence of San Luis Obispo Creek and Prefumo Creek 20000 18000 16000 14000 12000 ~.10000 0 8000 6000 4000 2000 0 -o ,..., C ..~ - --Existing Conditions -Simulated Natural Conditions Time ~from etart0'etorm IHourMlnDay) ...................................................::: CHART 3.2.2 10 yr'J 24-hr Storm Hydrograph Confluence of San Luis Obispo Creek and San Mlquellto Creek - - -Existing Conditions -Simulated Natural Conditions Note:Does not include discharge from San Mlquelito Creek ... Q is'o gN ooi;' -0 gN N i;' -0 N Q i;'o g-oo i;' -0 o l.....&Z...-.-_-=~~_..,.j,,__..J o i;'o 20000 18000 16000 14000 12000 ...................... i 10000 a 8000 6000 ........................ 4000 2000 Time·from stlIrt of arm (HourMlnDay) 110 San Luis Obispo Creek Watershed-Hydrology .'. .N LUll:,i Ot:U;)YU I,.;KJ:,C"-'>1 CCLttCAlJ I KUU I ttAtll1 A I iN V eNI UK:r (it.IN Ve;)IllJATlON http://www.tix.net/surtlsalmonlcrkdocs/habitat/habitatrpLhtmJ·. Back to the Central Coast Salmon Enhancement Homepage Back to Creek Documents Index Page SAN LUIS OBISPO CREEK STEELHEAD TROUT HABITAT INVENTORY &INVESTIGATION 1995 August,1996 Prepared for: California Regional Water Quality Control Board Central Coast Region Contract No.4-106-253-0 Prepared by: Paul A.Cleveland Certified Fisheries Scientist Land Conservancy of San Luis Obispo County Central Coast Salmon Enhancement ACKNOWLEDGMENTS Contributions of the following people are gratefully aclmowledged for their field assistance with collecting data for this project:Dave Highland,Department of Fish and Game;Howard Kolb,Regional Water Quality Control Board;Brian Stark,Land Conservancy of San Luis Obispo;Cher Wellonen,Cal Poly student;and Stu McMorrow,Cal Poly student.Also important to this inventory were the City of San Luis Obispo and San Luis Obispo County flood control personnel for their assistance with creek access. Lastly,Central Coast Salmon Enhancement,Inc.is aclmowledged for loaning their employe6 to author this study. TABLE OF CONTENTS ACKNOWLEDGMENTS TABLE OF CONTENTS i 'I .: 1 ~ tt L, :. t t ~ f I t~ I it- '.~~ , )(21 2/1101 9:20 AM of21 LIST OF FIGURES EXECUTNE SUMMARY INTRODUCTION People and Fish Use the Watershed Habitat Types and Components METHODS RESULTS Habitat Inventory Historical Records Passage Barriers Fish Stocking Steelhead Trout Population Estimates DISCUSSION Steelhead Trout Lifecyc1e Habitat Types and Components Pools Dammed Pools Riffles Flatwater Substrate Instream Shelter Complexity Rating Overhead Canopy Bank Vegetation Stream Width and Depth Barriers to Fish Passage Fish Stocking Interference with Habitat CONCLUSION AND RECOMMENDATIONS RECOMMENDATIONS FOR FURTHER STUDY REFERENCE APPENDIX A -Historical Records (Annotated Bibliography 1874 -1963) .APPENDIX B -Stream Inventory Summarized Data - -APPENDIX c-Habitat Inventory Raw Data (Available upon request from the Land Conservancy of San Luis Obispo CountY) LIST OF FIGURES Figure 1.Fifteen study reaches Figure 2.Study reach lengths Figure 3.Percent of habitat types in San Luis Obispo Creek Figure 4.Mean stream width and depth Figure 5.Predominant habitat types Figure 6.Instream shelter rating Figure 7.Total overhead canopy cover -·_--......·....",uu.... 2111019:20 AM .AN LUIS OBISPO CREEKSTEELHEAD TROUTHABITAT INVENTORY &INVESTIGATION http://www.f1x.netlsurtlsalmonlcrkdocslhabitatlhabitatrpthtml Figure 8.Right stream bank vegetation Figure 9.Left stream bank vegetation EXECUTIVE SUMMARY The purpose of this study is to assist the Land Conservancy of San Luis Obispo County to identify restoration opportunities along the main stem of San Luis Obispo Creek.The Land Conservancy has completed two studies related to San Luis Obispo Creek and is continuing to undertake studies on issues of importance to water quality and habitat improvement.This study on Steelhead Trout habitat is considered critical to establishing baseline information and providing a specific characterization ofhabitat needs. In this study,Steelhead Trout habitat and habitat components are inventoried by walking the main stem of San Luis Obispo Creek and using measurement Inethods developed by the California Department 'of Fish and Game.Research and interviews are conducted to investigate historical Steelhead Trout population sizes,fish stocking activities,and archived pre-1963 documents. Habitat inventory indicates a severe lack of pool habitat.Sixteen miles of main stem San Luis Obispo Creek have 719 habitat units consisting of 14%riffles,52%flatwater,28% pools,and 6%dammed pools.The stream measures a mean width of 14.3 feet and mean depth of 0.9 feet.Stream width and habitat greatly varies above and below.the City of San Luis Obispo's wastewater treatment facility.. Habitat components rate low.Most habitat types are only 13%covered with litle instream I shelter.Vegetation covers only 40%of the stream banks and overhead canopy is present in only 30%of the stream.Substrate is filled with sediments that embed spawning gravel 50-100%.Invasive non-native vegetation is common throughout the study area. Flood control,while necessary in urban areas,appears to be the major causative factor driving the removal of hard,pool creating objects,the associated proliferation of sediment from eroding stream banks,and the lack of instream shelter and related cover.A more selective procedure for clearing vegetation at the water's edge could meet the needs of both flood control and fish habitat.Efforts to incorporate pool creation (strategically placed boulders and logs)into flood control management and stream bank stabilization projects could prove very beneficial. In addition,instream shelter and cover can be created by restoring a continuously vegetated riparian corridor along the creek.Riparian restoration should include planting a wide variety of understory and tree species,eSPeCially Sycamore trees which have been found to contribute substantially to trout habitat.Temporary log matts could also provide seasonal shelter and cover. Eight potential fish passage barriers include a weir,check dams,culverts,and natural '0(21 211101 9:20 A}. 01'21 ·1 1 ,-. cascades.Temporary passage barriers made from hand-stacked rocks are also present.These barriers can be improved by cutting a notch in the weir,adding additional check dams, baffling culverts,creating step pools below the cascades and removing illegally hand-stacked rock barriers. Fish stocking records estimate 25,000 trout stocked per year from 1967 to 1991 into Laguna Lake on the Prefumo Creek tributary.These fish had access to San Luis Obispo creek during winter months when the lake overflowed.Catfish and carp have also been stocked.The carp have proliferated in the lower stretches and their eradication could provide an opportunity for native trout to re-establish.. Steelhead Trout population surveys were conducted for various portions of the creek from 1966 to 1994.The annual adult run of steelhead was estimated at 200 fish in 1972,117 fish in 1973 and 179 fish in 197.5.The juvenile trout population was estimated for areas above the wastewater treatment facility and in stretches above the City of San Luis Obispo.Above the wastewater treatment facility population estimates ranged from thirteen to twenty-six . trout per 100 meters in 1966 and again in 1975.Upstream from the City of San Luis Obispo, a 1975 survey found 174 trout per 100 meters;a second 1975 survey found 269 trout per 100 meters;and a 1985 survey estimated 186 to 311 trout Per 100 meters.Due to residual chlorine and un-ionized atrunonia toxicity,no trout were found downstream of the wastewater treatment facility effluent prior to 1994 [In 1994,water quality improvements were operational]. INTRODUCTION Natural production ofSteelllead Trout (Oncorhynchus mykiss)in California has greatly declined as the result of many projects which have provided valuable economic growth. Such projects have reduced fish populations by affecting their habitat,adjacent riparian vegetation,spawning areas,migration routes,and most significantly,water flows (California .Department ofFish and Game (CDFG),1995). Fish are an important public resource with significant economic,environmental, recreational,aesthetic,and educational values.The Salmon,Steelhead Trout,and Anadromous Fisheries Program Act declares that it is the policy of the State of California to increase the state's salmon and Steelhead Trout r~sources.This is to be accomplished by· improving and protecting stream habitat (CDFG,1995). In order to make recommendations about the most effective and cost-efficient restoration needs,it i's imperative to know the 19cation of fishery resources,relative population sizes, the quantity and quality of available habitat,and the most significant factors limiting fish production. San Luis Obispo'Creek is one of several streams in San Luis Obispo County which historically and cyclically has had a large,self-sustaining population of Steelhead Trout.As 211101 9:20 At- ;AN LU~OBISPO CREEKSTEELHEAD TROUTHABITAT INVENTORY &INVESTIGATION http://www.fix.netJsurfisalmonlcrkdocslhabitatlhabitatrpthtml .~.,,'II. recently as the early 1930s,during the Depression years,"if one had nothing else for dinner, there were always the fish in San Luis Obispo Creek.During those disastrous years,the creek literally fed many people,just as it had once fed the Mission Padres and the Chumash Indians"(McKeen,1988). Because of land use and instream activities which have adversely affected instream habitat as well as increasing demands on water resources,the Steelhead Trout population has been severely reduced.To better understand the existing condition of steelhead resources,an extensive evaluation of habitat,historical records (Appendix A),passage barriers,and fish stocking records has been completed.This report describes the results of this inventory and investigation. People and Fish Use the Watershed The creeks in the San Luis Obispo Creek watershed provide many functions and are viewed in different ways depending on who is asked.Flood control interests view the creeks as an obstacle-free conduit of water.Sewage facility operators see the creeks as a laboratory for maintaining water quality.Agriculturists find a source for irrigation water.Landowners are mixed between protecting a public resource and clearing a view for themselves.Biologists value the ecology and importance of fish and wildlife habitat.Residents and tourists are charmed by the rippling flow. Since the founding of the City of San Luis Obispo in the mid 1800's there has been disagreement over which of these functions is most important.A newspaper clipping from 1874 calls the creek nothing more than a sewer that is taking up too much space in the city (The Tribune,1874).In the 1930's the creek was a liability if flooding and only useful for irrigation,watering stock and fishing.By the mid-1950's there was a gallant effort to center the town plaza around a flowing stream (McKeen,1988).It was not until 1989 that the Water Quality Control Plan for the Central Coast Region first established a list of beneficial uses in the watershed that were to be protected and respected by all interests. The 84 square mile San Luis Obispo Creek watershed is surrounded by rough mountainous terrain that drains in a southwesterly direction.It is characterized by slightly compacted granular clay loam in the upper watershed and fine sandy loam in the lower reaches.San Luis Obispo Creek originates at an elevation of approximately 2,200 feet in the Santa Lucia mountain range near Cuesta Pass (Hallock et.al.,1994).In its eighteen mile descent to the Pacific Ocean it is joined by the three perennial tributaries of Reservoir,Stenner,and See Canyon Creeks;the four seasonal tributaries ofPrefumo,Froom,East Fork,and Davenport Creeks;and several seasonal minor drainages.Eftluent from the City of San Luis Obispo sewage treatment facility also contributes to the flow. In these streams very few species of fish are present simply due to the fact that they can not reach San Luis Obispo except by ascent from the sea (Jordan,1895).In fact,only five native species reside in this watershed (Steelhead Trout,Prickly Sculpin,Threespine Stickleback, 0(21 211/01 9:20 Al Speckled Dace,and Pacific Lamprey).Although there is not a great variety of fish,we do'i know that the local creeks have a history of good trout fishing. A 1954 creel census (fishenmen survey)indicated that San Luis Obispo Creek had more angling effort than any other stream in the region (except the Russian River)when a Steelhead Trout catch of 2,685 fish was sampled (CDFG,1955).In that same year,popular account describes a deep pool in Mission Plaza "where anyone could catch a fish.You could almost drop a line from the sidewalk."(McKeen,1988).If fishing was that successful in 1954,one can only imagine how good it was prior to 1861 when "trees of large size lined the banks of all streams in the region."(Daily Republic,1890). Adult Steelhead Trout were not counted in the watershed until 1972 when CDFG estimated a good year run of 200 fish.Juvenile trout were first counted in 1966 with findings of 13 to 26 trout per 100 meters in the main stem (Titus,1996). Numerous other fish surveys have been completed over the past thirty-five years,each of them finding Steelhead Trout in local streams (Tamagni,1995).Few of these recent surveys have extensive coverage or detail and because of the lack of historical data,we may never know the amount of fish production that once occurred in the watershed. Habitat Types and Compommts The focus of this report is 011 trout habitat and the components that enhance this habitat.The three basic habitat types are pools,riffles and flatwaters. In general,pool habitat is the areas of calm water,typically located ~ong the margin of streams,which provide calnL cool surroundings for large and small fish.Rime habitat is swiftly flowing stretches with exposed rocks that provide a niche for small fish,mix oxygen into water,and produce an important food source of insects.Flatwater habitat is moderately flowing stretches with little or no flow obstructions that,ifdeep and swiftly flowing,can provide territory to larger fish . .For this study,each of these habitat types was further subdivided (Level IV Classification) into nine types of pools,thre.e types of riffles,and three tYPes of flatwater,as listed in the Results section. Each of these habitat types can be enhanced,thereby making them more desirable to fish,by the presence of attributes,or components of habitat.These components include substrate, instream Shelter,cov.er,stream bank vegetation and overhead canopy. Substrate is the material that forms the bed of the stream such as boulders,gravel,cobble, sand,silt,and bedrock.Instream shelter is the material within the water column that provides a place for fish to rest,protection from predation,and a separation of fish territories.It may include undercut banks,woody debris,root mass,aquatic and terrestrial .J •••• ,(21 2/1/019:20 M iAN LUIcS OBISPO CREEKSTEELHEAD TROUTHABITAT INVENTOR'i &lNVESTlGATION http://www.tix.nellsurtJsalmonlcrkdocslhabitatlhabllatrpLhtmJ e:"~...~ vegetation,bubble curtains,and boulders.Cover is the area of a habitat that is occupied by instream shelter when looking down at the unit (or looking up if you are a fish).Stream bank vegetation is the unique riparian plant life that provides leaf litter and woody debris for primary productivity.It can filter sediments and contaminants from water entering the stream and reduce water flow to trap spawning gravels.It can also contribute to instream shelter,cover and overhead canopy.Overhead canopy is the vegetative mass produced by trees and large shrubs that inhibits solar radiation and maintains a cooler water temperature. A variety of measurements are made to describe each of these habitat types and habitat components.Habitat types are measured by length,width and depth.Pools have two additional measurements of tail pool crest and substrate embeddedness.Tail pool crest is the depth where water exits the pool,measured from the top of the pool to the surface of the water.This measurement allows one to predict how deep a pool would be if there were a cessation of stream flow.Substrute embeddedness refers to the amount of sediment surrounding the substrate at the pool tail.Because trout typically spawn at the tail of a pool, less embedded pool tail substrate is higher quality spawning gravel. Habitat components are measured by percentage of occurrence and dominant occurrence.In addition,an instream shelter complexity rating is made based on the quantity and composition of the instream shelter.In other words,the rating takes into account the cover provided by instream shelter and the diversity of this shelter (ie.undercut banks,woody debris,root mass,aquatic and terrestrial vegetation,bubble curtains,and boulders). METHODS Habitat Inventory Methodology followed guidelines presented in the second edition of the California Salmonid Stream Habitat Restoration Manual (Flossi and Reynolds,1991).Habitat inventory was modified using Sampling Levels For Fish Habitat Inventory (Hopelain,1994). The main channel of San Luis Obispo Creek was divided into fifteen reaches in the San Luis Obispo Creek Hydrologic Survey (Land Conservancy,1996).A graphic delineation of these reaches is provided in Figure I and the linear distance of eachreach is given in Figure 2. Each habitat,as defined in the Restoration Manual,was identified and measured by length. Level four classification separates riffles on the basis of water surface gradient;flatwater on the basis of depth and velocity;and pools by either location within the channel or the cause of scour 6e.boulder,bedrock,rootwad,or log)(Nelson,1994). Inventory components were collected by walking the stream from the bridge at San Luis Bay Drive and Avila Beach Road to Stagecoach Road at Highway 101 on the Cuesta Grade. The inventory took place during the months of November and December,1995. 'of21 2/11019:20 AI .I..t -. of21 ~--~-t''''I&Ul For every ten individual habitat units identified,one was randomly selected with the following parameters measured:length,mean width,mean depth,maximum depth,primary and secondary substrate components,percent instream shelter,instream shelter complexity, percent total canopy,dominant right and left bank composition and percent vegetated,depth and substrate embeddedness of the pool tail crest,and comments.Stream.slope was also measured in descriptive art~as.Equipment for makirig measurements included a measuring tape,stadia rod,spherical densiometer (for measuring total overhead canopy),and sight mark level. Historical Records Historical data in relation to San Luis Obispo Creek was found at the San Luis Obispo County Museum,the Department ofFish and Game,and by interview. Passage Barriers Barriers to fish passage were identified while making inventory measurements.For the purpose of this survey,a barrier was defined as any structure,natural or manmade,that had the potential to inhibit the up or downstream movement of small or large fish. Fish Stocking Jim Adams,California Department ofFish and Game's Fillmore Hatchery Manager was contacted by telephone for fish stocking records. RESULTS Habitat Inventory Sixteen miles of main stem San Luis Obispo Creek had 719 habitat units which consisted of 13.9%riftIes,51.7%flatwater,28.5%pools,and 6.2%dammed pools (Eigure 3). The stream measured a mean width of 14.3 feet,mean depth of 0.9 feet,and maximum depth of 5.0 feet.Inventory components are summarized for each reach and the entire study length in Appendix B. As shown in Figure 4,the stream width varied greatly above and below the treated sewage eftIuent of the Wastewater Reclamation Facility (WRF).This facility provided records to indicate an approximate stream flow (for November,1995)above the facility of2.0 cfs and a flow of 12.1 cfs downstream of the facility (Fairchild,pers.comm.).Accordingly,the description of predominant habitat types,flatwaters and pools,also differ (Figure 5). Above the wastewater facility,44 pools had a mean length of26.2 ft,width of9.7 ft,and depth of 0.9 ft.Maximum pool depth was 3.8 ft.Tail pool crest averaged 0.4 ft with 2111019:20 At- A.N LU~OBISPO CREEKSTbELHEAD TROUTHABITAT INVENTORY &INVESTlGATlON http://www.tlx.netlsurtlsaJmonlcrkdocslhabitatlhabitatrpt.html.. " embeddedness of 50 -75%.The mean pool unit cover was 11.9%.The 212 flatwater habitats had an average length of 167 ft,width of 8.8 ft,and depth of 0.5 ft.The mean flatwater unit cover was 6.2%.. I AboveWRF BelowWRF No.of Pools 44 166 Mean Pool Length (ft)262 57.1 Mean Pool Width (ft)9.1 11.8 Mean Pool Depth (ft)0.9 1.4 Maximum Pool Depth (ft)3.8 5.0 Mean Pool Cover (cro)11.9 23.6 Number of Pools>3.0 ft 1 15 Tail Pool Crest (ft)0.4 0.1 ..y::...Embeddedness (%)50-15 15 -100£- No.of Flatwaters 212 246 Mean Flatwater Length (ft)161.0 111.0 Mean Flatwater Width (ft)8.8 11.1 Mean Flatwater Depth (ft)0.5 0.1 Mean Flatwater Cover (cro)62 12.9 Below the wastewater facility,166 pools had a mean length of 57.1 ft,width of 17.8 ft,and depth of 1.4 ft.Maximum pool depth was 5.0 ft with only fifteen pools 3.0 ft or greater.Tail . pool crest averaged 0.7 ft with embeddedness of75 -100%.The mean pool unit cover was 23.6%.The 246 flatwater habitats had an average length of 111 ft,width of 17.7 ft,and depth of 0.7 ft.The mean flatwater unit cover was 12.9%. Instream Shelter Complexity Rating Habitat units were 13.4%covered,predominantly by aquatic watercress vegetation.Because this cover was created by only one or no instream shelter components,the instream shelter value averaged 0.7.By multiplying the p~rcentage of cover by the instream shelter value,a mean instream shelter complexity rating of 9.4 was calculated out of a possible range of 0 to 300 (Figure 6). Overhead Canopy Overhead canopy (Eigure 7)averaged 30.2%with prominent species of willows,walnuts, sycamores,and oaks.In addition,the lower reaches (2 &3)had many box elders and cottonwoods,while middle reaches @.&2)and the upper reach (15)had numerous mature eucalyptus. Stream B3nk Vegetation The creek banks had a dominant composition of silt,clay or sand and a dominant vegetation of brush or deciduous trees.Overall,right and left creek banks were 40%vegetated,leaving 60%as bare eroding soil,bedrock,or revetment. 'of21 211/019:20 At- Throughout the study area an invasion of non-native pests included giant reed and gennan ivy.Castor bean was common in the areas of reaches seven through nine. Historical Records An annotated bibliography in Appendix A provides a summary of pre-l 963 newspaper clippings,interviews,Fish and Game files,and a book. Passage Barriers Eight potential barriers to fish passage included the Marre Dam in Reach I;fish ladder under Highway 101 in Reach 3;small check dam near Bianchi Lane in Reach 10;4'bedrock cascade under the city in Reach 11;check dam and culvert at Highway 101 below Cuesta Park in Reach 13;5'bedrock cascade in Reach 15;and culvert at Highway 101 and Stagecoach Road in Reach 15.Temporary passage barriers made out of hand-stacked rocks . were found in Reach 13. Fish Stocking Department of Fish and Game fish stocking at Laguna Lake,in the San Luis Obispo Creek watershed occurred from 1967 to 1991.Approximately 25,000,one-third pound,trout were .planted every year between the months of November and April.These trout were of a strain originating at Coleman and Mt.Whitney hatcheries. Fish stocking from miscellaneous receipts obtained in CDFG files have also been found which indicate that there are additional stockings left undiscovered.Known fish stockings are as follows: ~~~No,ofFish HatcheJ:Y Source 1967-1991 Laguna e Trout 25.oootyr Fillmore Aug.17.1971 Laguna Lake Catfish 16,000 ? July.Xl.1978 Laguna Lake Catfish 15,000 Imperial Valley Aprll16.1979 See Cyn Bridge .Steelhead 4,5()()Mad River Aprll23.198O See Cyn Bridge Steelhead 1.500 Mad River Oct,1.1980 Laguna Lake Catfish 1.140 Imperial Valley Stee1head Trout Population Estimates Titus (1996)researched and compiled CDFG population surveys of San Luis Obispo Creek which are presented in this section.He reports that visual surveys in 1958 and 1960 found rearing habitat in the lowermost creek and spawning gravel in the upper reaches.While trout populations were not estimated,heavy angler pressure was noted.In a 1966 survey (connnonly called the "Nokc~s Study"),Titus describes a cresol sample that estimated trout populations in the lower creek to range from thirteen to twenty-six trout per 100 meters. During this same survey,a bioassay showed that trout could survive only one-half hour Oofil 2/1101 9:20 AJ., ~LUi~?~iSPO CREBK::>TBBLHEAD TROUTHABiTAT iNVENTOK Y (I(.iN VB::iTK.ATiON htlp:lIWWW.hX.nevsurusa101OllIcrkdocslhabitatlhabitatrpt.html below the wastewater treatment facility discharge due to residual chlorine toxicity. Adult Steelhead Trout were not counted in the watershed until 1972-73 when CDFG estimated an good year run of 200 fish.This study was repeated in 1973-74 with an estimate of 117 adult fish.During these surveys,adult fish were found to range from three to five years age with sizes ranging from fourteen to thirty inches. The first watershed-wide juvenile trout count took place in 1975 under the direction of Cal Poly professor,Dr~Barclay.This survey found an average of thirteen trout per 100 meters in main stem San Luis Obispo Creek downstream of the Stenner Creek tributary.The upper .stream and perennial tributaries averaged 174 trout per 100 meters.This disparity in trout counts was attributed to the poor water quality of the lower stream due to effluent from the wastewater treatment facility.. A second 1975 survey;conducted by CDFG,estimated the trout population in upper San Luis Obispo Creek to average 269 trout per 100 meters.Calculations of the adult population required to produce these offspring was estimated at 179 adult steelhead. A 1985 CDFG survey had findings similar to those in 1975 with findings in the upper creek that ranged from 186 to 311 trout per 100 meters.No trout were found below the wastewater effluent discharge point. The latest qualitative survey,conducted by CDFG in 1994,observed juvenile trout in lower San Luis Obispo Creek below the wastewater discharge.No population estimates were made. DISCUSSION Steelhead Trout Lifecycle Adult Steelhead Trout enter San Luis Obispo Creek between January and March during the subsidence of high water storm flows.In all accessible areas they find suitable gravel and lay eggs that hatch in about 20 days (at 58°P).Within two to three weeks after hatching,fry emerge from the gravel and,if necessary,emigrate to perennial streams (Barnhart,1986). Small schools of young trout fry live along the stream banks in shallow water.As they grow, the schools break up and individual fish defend their territory.Most stee1head tend to inhabit riffles during their first year with the larger fish inhabiting deep fast runs or pools (Barnhart, 1986). After approximately two years of feeding on a variety of aquatic and terrestrial insects,some steelhead migrate to the ocean.All steelhead do not migrate and those that remain in the stream are called "resident"Rainbow Trout.Little to no genetic variation has been found between these two forms of the same fish ~lcEwan,1996). lof21 2/1/01 9:20 AN. 20f21 "--··-·......u..,L.UUIJ '. In the ocean,steelhead grow rapidly for one or two years before returning to spawn.Their distribution in the ocean is not completely mown but some evidence suggests they roam north and south along the Continental Shelf.Most Steelhead Trout will repeat their migration to spawn two to three times (Barnhart,1986). Habitat Types and Components Physical and chemical features of instream habitat are closely related to land uses in the surrounding landscape.The habitat needs of trout are rather precise and alteration of this landscape can have profound impacts on the creation or destruction of different habitat types and their attributes (Meehan,1991). The following discussion will present the habitat types and habitat components inventoried in this study,their use.by Steelhead Trout,and the impact of land use activities. Pools Pools appear to be created and maintained by water continuously hitting hard objects, thereby causing a turbulence (eddy current)which scours depressions in the stream bottom. Such hard objects include boulders in the stream and branches that extend over the waters edge.Inventory results show ~t only one-quarter of the habitat is pools (50%is preferred), most of which are shallow (less than three feet deep),without instream shelter,and therefore,of poor quality.The majority of these pools,166 out of 21 0,are located below the Wastewater Reclamation Fa.cility in a seven mile stretch to the ocean. Probable cause for the low percentage of pools is the removal of vegetation and other hard, pool creating objects,by municipalities and landowners,under Fish &Game agreement,for flood control. The most complex and desirable pools were formed by rootwads of large trees,especially sycamores.These pools,continually maintained through natures design,provide deep, covered,complex instrearn shelter. Dammed Pools Dammed Pools are created by manmade barriers such as the Marre Dam in Avila Beach,and several handmade cobble dams in the City of San Luis Obispo,that create pools for pumpmgwater.They"do not appear to provide good habitat They have poor shelter,silt substrate,and limit upstreanl passage if a small fish should happen to move below the barrier.If the dams creating these pools were removed,the resulting habitat would most often be flatwater.Therefore,these Dammed Pools have not been included in the Pool category.Inventory results show that Dammed Pools comprise 6.2%of the habitat 2/1101 9:20 M 'N LUIS OBISPO CREEKSTEELHEAD TROUTHABlTAT INVENTORY &INVesTiGATiON hltp:llwww.Ux.nevsurusalmowcrK<lOCSlhabitatlhabitattpt.html ..•t'': Riffles Riffles are created when cobbles and boulders are deposited in the stream channel.Their deposition appears to occur during the initial subsidence of storm water flows and i,n the eddy currents created by pool fonning turbulence.Inventory results show that 13.9%of the stream consists of rimes.These are food producing areas and provide habitat to very small fish (Chamberlin,1991).They are characterized as shallow,swiftly flowing turbulent reaches with exposed substrate (F1ossi and Reynolds 1991).The turbulence in a riffle appears to mix oxygen into the water and supply it to downstream pools. Riffles were found in downstream reaches four through seven and upstream reaches ten through thirteen.They were also found in reach fifteen.While this author is not familiar with a preferred percentage for riffle habitats,it does appear that the addition of riffles in lacking reaches would be beneficial.The cause for an apparent shortage of riffles may be associated with an abundance of silt substrate,a lack of pools and vegetation,and the absence of large cobble or boulders. Flatwater Flatwater predominates San Luis Obispo Creek with 51.7%of the habitat units in this category.Comprised of glides,runs,and step runs,flatwater is moderate to swiftly flowing reaChes with little surface agitation and lacking major flow obstructions.The ~jority of flatwater is evenly divided between runs and glides.These sub-habitat types differ only slightly in morPhology with runs having shallow,agitated flows and glides having calm surface waters,a wide Uniform channel bottom,and a variety of water depths. Flatwater can provide habitat to larger fish if it is deep and swiftly flowing (Barnhart,1986). The mean flatwater depth of 0.7 ft below the wastewater facility and 0.5 ft above this facility would probably not qualify as "deep".No trout were seen in these habitats,although an abundance of dace and stickleback were observed.Also contributing to the lack of trout was the poor instream shelter in flatwater habitats,ranging fro~6.2%upstream to 12.9% downstream of the WRF,which may increase chances for predation. As with rimes,this author is not familiar with a preferred percentage for flatwater habitat.It does appear that overall habitat could be improved by breaking the long stretches of flatwater with pool and rime habitats.An example of this can be found in reach fifteen where one flatwater habitat is nearly two miles long -this is a lengthy distance for a fish to swim without a pool to rest or a riffle to add oxygen.,. Substrate Clean gravel substrate,required for spawning,is found only in Reach 15,a two mile flatwater habitat up Cuesta Grade.The dominant substrate throughout the remaining fourteen miles of stream consists of silt,clay and sand While gravel or cobble is often the 30(21 2/1101 9:20 Atv ~~-dominant substrate,it is is -100%embedded with sediment,making it poor for ..'. spawning (less than 20%se:diment is preferred).The winter rains may flush the gravel long *- enough for fish to spawn,but continuing erosion can quickly fill interstitial spaces and /'I ,smother deposited eggs.Substrate is also important to the production of an insect food Ysource and it has been found that an increase in fine sediments will lead to a decrease in insect productivity (Bjomn and Reiser,1991). The source for much of these sediments in San Luis Obispo Creek appears to come from eroding creek banks due to vegetation removal (flood control),cattle access,and encroaching development.Additional sources include runoff from agriculture fields and erosion resulting from the "Highway 41 Fire"of 1994.This sediment does not enter the stream continually,but during episodic events such as large storms (Swanston,1991). Instream Shelter Complexity Rating Habitats in San Luis Obispo creek have very little cover,averaging 13.4%,and poor complexity,averaging 0.7 (from a range of 0 -3).While the mean instream shelter complexity rating is 9.4 there is a notable increase to 62.2 in Reach 4.This reach is different from other reaches for one pronounced reason:no flood control measures have been taken to remove instream or stream bank vegetation and woody debris. Elsewhere,the majority of instream shelter consists of aquatic vegetation,mostly watercress, followed by overhanging terrestrial vegetation,root mass,and undercut banks.Woody debris,in the form of broken branches and logs,is almost completely absent.This is a significant missing feature because woody debris not only provides instream shelter and cover,but it also forms the basis for primary prod~ctivity in the food chain ~d nitrogen fixation (Meehan,1991). Overhead Canopy In its ~ntribution to fish habitat,overhead caIiopy,produced by trees and large shrubs,is vital to reducing solar radiation and maintaining a cooler water temperature.Overhead _ canopy was the least dense from a point one-mile upstream of San Luis Bay Drive to the Marsh/Higuera Street inters'ection (Reaches S through 10).Hallock (et.al.,1994)found that this section of stream has significantly higher water temperatures than other sites -the primary reasons for which are the lack of canopy and warm water effluent from the wastewater treatment facility.Their suggestion for reducing temperature is to restore and maintain a continuous riparian corridor along the stream. Overhead canopy also provides important cover and instrearn:shelter (leaf litter and woody debris)as well as stream bank stabilization.Under Pools,above,tree roots and branches were identified as responsible for forming the most complex and desirable pools. Observations indicate that Sycamore trees are also the most capable of reaching long branches across streams and providing all of the attributes associa~with canopy. "0f21 2/1101 9:20 A~ ·AN LUIS OBISPO CREEKSTEELHEAD TROUTHABlTAT INVENTORY &INVESTIGATION http://www.hx.netlSUrtl8almonlCrkdocslhabitatlhabitatrpt.html.. Bank Vegetation The relationship between stream bank,or riparian,vegetation and healthy trout habitat is a strong·one.Riparian vegetation is unique to wetlands,such as stream banks,and influences stream ecology in many ways.Its deep root system helps stabilize banks against erosion and maintain undercut areas that trout utilize as instream shelter.Its roots,branches and leaves act as a buffer that filters sediment and contaminants from water before it enters the stream. It provides leaf litter and woody debris.It causes roughness that slows water velocity,traps gravel for use in spawning,and harbors insects that·drift into streams to feed trout. A local newspaper story (White,1996)provides anecdotal information which sums the contribution of bank vegetation to stream bank integrity and erosion control.In this story,a bridge washed out after vegetation was removed: During the heavy storms a year ago in January,the bridge held firm.In February,the county cleaned out the creek bed,removing vegetation and debris from the Highway 41 fire to prevent potential flooding.Then in March,more torrential rain came.The creek was bare and clean and the water moved much faster.On March 10,the mud in the creekbed turned to goo and the foundations for the bridge sank.Then the rushing water began to eat away at the dirt sides of the banks and the bridge fell in. In San Luis Obispo Creek the stream bank vegetation is fragmented throughout the study area.Most lacking of vegetation is the downtown city stretch from the MarshlHiguera Street intersection upstream to Cuesta Park (Reaches 11 &12).Also lacking stream bank vegetation are Reach6,downstream,and Reaches 13, 14,and 15,upstream. Stream Width and Depth The depth of the stream remains fairly constant throughout the study area at an average of 0.9 feet.The average width,however,changes considerably in two stretches.Below Los Osos Valley Road (Reach 8-1),the average width almost doubles from eleven feet to twenty~ne feet.Above Cuesta Park,in Reaches 13 &14,the average width doubles from six feet to twelve feet. These width increases appear to have natural and man induced causes.The natural causes are the merging of tributary streams that increase flow rates and carry away erosive soils during flash flood episodes.In the downstream stretch, this natural process seems to be exacerbated by non-porous paving in the City of San Luis Obispo which increases runoff and associated erosion. The main cause of the upstream width increase,and contributing to the downstream stretch, is possibly due to years of improper livestock grazing practice,the impacts of which are well documented. 150f21 2/1/01 9:20 At ..."• Away from the stream,livestock change vegetative composition and compact soil,thereby increasing runoff and erosion.Near the stream,livestock compact soil and trample vegetation which weakens the stream bank integrity.In San Luis Obispo Creek,the stream banks have a high content of clay which,when compacted,tends to break off in large clumps.The combination of increased erosion,reduced vegetation,and stream bank instability,lowers the water table and causes streams to become wider and more shallow (Meehan,1991).. Barriers to Fish Passage Barriers in San Luis Obispo Creek cause two negative effects.They inhibit the opportunities for fish to freely travel up and downstream.They also alter habitat by creating dammed pools,as previously discussed.. Most barriers in the main stem of San Luis Obispo Creek are probably not what is frequently referred to as a "migration barrier,"as they do not impede the upstream movement of adult fish during episodes of high water.Two possible exceptions are the culverts that cross under Highway 101 above Cuesta Park and at Stagecoach Road on Cuesta Grade.These "velocity barriers"can impede adult fish migration by causing water flows in excess of a fishes ability to swim against the current.They can easily be improved by adding baffles to create areas of backwater. Another possible "migration barrier"that deserves special recognition is the Marre Dam in Reach 1~In 1969,this steel plate dam was constructed to produce a source of freshwater by preventing seawater intrusion into the ground and surface waters.A ladder for fish passage was not installed until two years after construction of the dam.That fish ladder was ineffective and later replaced by a DeNil fishway which today is rusted through and functional only at higher tides.A possible solution to the passage problems created by this dam would be to cut a low flow notch in the steel plates (Leggett,1994). All of the other barriers are more of a problem for small fish during summertime low flows. Trout are very territorial.If food is limited,big fish chase small fish away.When a barrier is' present,small fish can move only downstream.Once a fish drops below a barrier there is no going back. Of the six low-flow barriers inventoried in San Luis Obispo Creek,two have fish ladders, two are natural bedrock cascades,and two are manmade check dams (all locations given in Results section).The check dams maintain a gradient that prevents the creekbed from eroding at the base of culveJis.At the time of their installation they work well,but after a period of time,they create their own barrier as water erodes away the creekbed below them. Installation of additional ch(~k dams would improve conditions by creating a series of steps that small fish can pass over.This approach would also improve the bedrock cascade barriers.. 0(21 2/1/0 I 9:20 M AN LUIS OBISPO CREEKSTEELHEAD TROUTHABLTAT INVENTORY &IN VESTIGATlON http://www.hx.ndlsurtlSlllffiOntCrkdocslhabitatlhabitatrpt.htlllll.. ,<....' Fish Stocking Although most of the estimated 625,000 stocked trout were planted in Laguna Lake on the Prefumo Creek tributary,they did have access to San Luis Obispo Creek whenever the lake overflowed during the rainy season.In 1991,a new area Department of Fish and Game Biologist put a stop to stocking in the watershed since this practice was in direct conflict with Steelhead Trout policies.Such guidelines were established based on salmon studies that found fish stocking tended to introduce competition for space and food,disease that could transfer to wild fish,and a false sense of stream health [assumption:if a stream has fish,it is healthy](McEwan,1996). Recreational fishing is very popular and receiving increased attention in waters with thriving fisheries (Hunter,1991).If a thriving fishery is the goal for San Luis Obispo Creek,three options could be considered.Habitat can be improved to increase natural production;habitat can be improved to support stocking,at a risk of replacing natural production;or fishing can cease -it is already limited to a short season in the lower creek. Interference with Habitat Carp,a non-native fish flourishing in the lower reaches are known to interfere with native fish habitat.They dig up aquatic plants,disturb substrate,and increase suspended matter in /the water (Moyle,1976).The stretch of creek below the wastewater treatment facility was directly toxic to Steelhead Trout from either chlorine or un-ionized ammonia for nearly twenty-five years.During this time,hardy carp had an opportunity to proliferate and it appears they were successful.While this inventory did not specifically look for fish,many large carp were seen in downstream reaches 2 through 8.Now that water quality has been greatly improved in this area,it might be effective to try and eradicate carp so that the native trout will have a better chance to re-occupy the area. CONCLUSION Steelhead Trout on the Central Coast are an opportunistic species with precise habitat needs. They require clean gravel for spawning,deep cool pools to survive the heat of summer, instream shelter to hide them from predators throughout the year,and lively riffles to produce an insect food source. Findings that limit Steelhead Trout production in San Luis Obispo Creek are described as follows:' €The most limiting habitat type is pools. €One most likely cause for the lack of pools is the removal of hard objects that create them and the high sediment loads that fill them. €All habitat types lack ins1ream shelter and associated cover. 170(21 2/1101 9:20 At- .. .,,<. €Habitat could be improved by selective vegetation removal and restoration of a continuous riparian corridor,especially with Sycamore trees. Flood control,while necessary in urban areas,appears to be the major causative factor driving the removal of hard objects,the proliferation of sediment from eroding stream banks,and'the lack of instrt~am shelter and associated cover.A more selective procedure for clearing vegetation at the water's edge could meet the needs of both flood control and fish .habitat.Modified clearing and maintenance practices should strive to create a central,deep, .narrow thalweg (flowline)within the stream channel and well vegetated stream banks. Of the fifteen reaches inventoried,none provided exemplary habitat.Downstream reaches 2 through 8 offered pools and riffles,but lacked gravel substrate,complex instream shelter, and continuous riparian vegetation.An exception in this lower creek stretch was Reach 4.At the time of inventory it had not had its vegetation cleared,and as a result,provided a substantial amount of diverse habitat. Measures to improve habitat deficiencies in downstream reaches should include modifying vegetation removal practices for flood control activities,as described above,and restoring a continuously vegetated riparian corridor.Riparian vegetation restoration should include planting a wide variety of understory and tree species,especially Sycamore trees.Since trees grow relatively slowly,a short-tenn understory should be planted that will provide characteristics associated with riparian vegetation yet will not out-compete the growing yoling trees. Upstream reaches 8 through 13,in the City of San Luis Obispo,lacked pools,riffles, complex instream shelter,gravel substrate,and a continuous riparian corridor.Stream channelization and maintenance has removed hard pool-creating objects.Urban encroachment has replaced riparian vegetation with revetments,gabions,cement sacks,and rip-rap,as well as destructive exotic plant species,decks,and storage sheds. Since many of the upstream reaches are within the urban boundary of the City of San Luis .Obispo,flood control activities must be given suitable management priority.However, measures to improve habitat might include modification of flood control activities,as described above,and strategic placement.of rip-rap boulders used for stream bank stabilization.Boulders are preferred over concrete revetments because of their ability to .create pools and support vegetation,if properly maintained.Efforts to incorporate pool creation and vegetation into flood control management and stream bank stabilization projects could prove very beneficial. Upstream from the city,habitat in reaches 14 and 15 was similar to urban reaches with an exception of clean gravel substrate in Reach 15.A severe lack ofinstream shelter and pool habitats limit the habitat value in these reaches. There are three short-term f(~storation practices that will provide immediate benefit to the ~of21 2/1101 9:20 M AN LUIS·OEUSt'U (.;KEEKSTEELHt:.AUi KUU i HAtH i A i iN Vt:.N 1 UK \'6L iN V1::.::;llvA llUN 1ll1p:llwww.l1x.Jl<:V>iUI"""UIIUUI<;'KUOCSIhabllaVhabitalIpt.httnl "'.- .•t.',,,>11 Steelhead Trout in San Luis Obispo Creek.These are bank-placed boulders,log shelter structures and carp eradication.Because of the swift currents produced by "flash-flood" events,most fish habitat structures would not remain in the stream.Boulders and log shelters will last only if strategically placed and well anchored with cables.Temporary small log matts that provide shelter can be installed during the summer and removed prior to winter rains.Carp,if eradicated from the lower stretch of creek,may provide trout with an opportunity to inhabit the area. This report would not be complete without some mention of maintaining a minimum stream flow and limiting water diversions in the creek.If San Luis Obispo Creek is to be managed as a Steelhead Trout stream,as recognized by the Department of Fish and Game,present and future water diversions should be limited to maintain a minimum summer flow.In other words,no water should be taken from the stream,through riparian rights or other means, unless instream uses by fish are first adequately provided.Adjudication is a viable option. RECO~NDATIONSFORFURTHERSTUDY Fish Surveys Two fish surveys will compliment this study through outmigrant trapping and electrofishing. Outmigrant trapping will determine timing and general morphological characteristics of Steelhead Trout smolt and parr movement.Electrofishing will assess fish population sizes (for all species)and,possibly,associate life stages with habitat types. Stream Hydrograph A stream flow hydrograph can be prepared from wastewater facility records and supplemented with additional data collection.A hydrograph can also be prepared by relating an unguaged stream to a gauged one.Data from a hydrograph can be used to determine what is nonnal flow and what is a reasonable minimum flow. Tributary ,Upstream and Estuary Inventory Because inventory of main stem San Luis Obispo Creek did not reveal a tremendous amount of habitat,perennial tributaries,upstream reaches,and the estuary (Reach 1)should be evaluated for habitat value.Perennial tributaries historically important to fish production include See Canyon,Stenner,and Brizziolari.Two miles of main stem San Luis Obispo Creek were not inventoried in this current study and may offer habitat if the velocity barrier under Highway 101 were improved.Additionally,it is not unusual to find abundant numbers of Steelhead Trout in estuary environments.The San Luis Obispo Creek estuary in Avila Beach is not known to harbor trout and an investigation may provide useful information for improvements. Verify Source of Sediments,Flood Control Impacts,Livestock Impacts,and Pool Creation 190f21 211101 9:20 At .. This inventory made observations and estimations for the source of sediments,impacts of flood control and livestock,and the natural process for creating pools.'Studies should be conducted or references researched that support and verify these observations. REFERENCES Barnhart,R.1986.Species profiles:life histories and environmental requirements of coastal fishes and invertebrates (Pacific Southwest)-Steelhead.U.S.Fish and Wildlife Service. Biological Report 82 (11.60).U.S.Army Corps of Engineers,TR EL-82-4.21 pages. Bjornn,T.C.and D.W.Reiser.1991.Habitat requirements of salmonids in streams. American Fisheries Society Special Publication 19:83-138. California Department of Fi.sh and Game.1955.Steelhead Fisheries Report for Region 3. (Document referred to by Ralph Hinton in his May 17,1961 Intraoffice Correspondence.] Chamberlin,T.W.and R.D.Harr and F.H.Everest.1991.Habitat requirements of salmonids in streams.American Fishedes Society Special Publication 19:181-206. Fairchild,A.Technician,W'astewater Reclamation Facility.San Luis Obispo,California. Telephone conversation on December 21,1995 regarding one upstream and one downstream November,1995 flow sample. Fish &Game Code ofCalifomia.1995.Gould Publications.Section 2761.Page 167. Flosi,G.,F.L.Reynolds.1994.California salmonid stream habitat restoration manual. Resources Agency,California Department ofFish and Game.227 pages. Hallock.,B.G.and L.S.Bowker,W.D.Bremer,D.N.Long.1994.Nutrient Objectives and Best Management PractiCes for San Luis Obispo Creek.California Regional Water Quality Control Board,Central Coa')t Region.Contract No.0-172-253-1.Page 9-11... Hopelain,J.1994.Sampling levels for fish habitat inventory.Unpublished Report. Resources Agency,California Department of Fish and Game.7 pages. Hunter,C.1991.Better Trout Habitat:a Guide to Stream Restoration and Management. Island Press.Washington,D.C.320 pages. Jordan,D.S.1895.Notes on the fresh-water species of San Luis Obispo County,California. Bull.U.S.Fish Comm.14 (for 1894):141-142. Land Conservancy of San Luis Obispo.1996.San LUis Obispo Creek watershed hydrologic survey.Prepared for the California Water Quality Control Board.Contract No.4-106-253-0. :Oof21 2/110 I 9:20 A~ W LUtS O.lUSt'U LKbhlU)U:.hLtil::.AJ.J 1 KUU 1 !-tAlll I A 1 U~Vl:.N lUK r ""li'l V 1:.;)I IUA I IUI'l Illlp:JI WWW.JlX.IlC""UW:>4U1IUW <;1 II.UOCSI UaollaVhabllatrpt.htnll ~.">.'t 110 pages. Leggett,D.1994.Marre Dam study for fish passage improvement.Cal Poly State University,Senior Project.44 pages. McEwan,D.and T.A.Jackson.1996.Stee1head management plan for California.California Department ofFish and Game,Feb.1996.234 pages. McKeen,R.1988.Parade Along The Creek,San Luis Obispo Memoirs of the 1920s Through '60s.Blake Printery,San Luis Obispo. Meehan,W.R.(ed).1991.Influences of forest and rangeland management on salmonid fishes and their habitats.American Fisheries Society Special Publication 19.Pages 1-14. Moyle,P.B.1976.Inland Fishes of California.University of California Press.Berkely, California. Nelson,J.1994.Summary of steelhead'population and habitat sampling,Santa Rosa Creek, San.Luis Obispo County,1993.California Department ofFish and Game Sport Fish Restoration Report.127 pages. "Protecting the Bank."Jan.27,1890.Daily Republic,San Luis Obispo. Swanton,D.N.1991.Natural processes.American Fisheries Society,Special Publication 19: 139-179. Tamagni,C.D.1995.Distribution oftbe five native fish species in the San Luis Obispo Creek watershed.Cal Poly State University,Senior Project.43 pages. Titus,R.G.,D.C.Ennan,and W.M Snider.1996.Hilgardia (accepted for publication). History and status of steelhead in California coastal drainages south of San Francisco Bay. "What San Luis Wants."Sept.5,1874.The Tribune,San Luis Obispo. White,M.January 6&7,1996.Up the creek -without a bridge.Telegram Tribune.Front Page. !I of21 2/1101 9:20 At. View Full Size Image <> Reference 1 Reference 2 Reference 3 Reference 3 Reference 4 Reference 5 Reference 5 Reference 6 Reference 7 Reference 7 Reference 8 Reference 8 Reference 9 Reference 10 I council. MamgD 5-1-07 j acEnaa Repoat N..b./,/// CITY OF SAN LUIS OBISPO FROM: John Mandeville, Community Development Director Prepared By: Michael Codron, Associate Planne>9 SUBJECT: ANNEXATION OF 620 ACRES IN THE MARGARITA AREA AND AIRPORT AREA, A PRE-ZONING ORDINANCE FOR THE MARGARITA AREA AND ENVIRONMENTAL REVIEW. CAO RECOMMENDATION As recommended by the Planning Commission, authorize an application to the Local Agency Formation Commission for the proposed annexation (Phase Ia)by taking the following actions: 1) Adopt a resolution of intention to annex 620 acres of land in the Margarita Area and Airport Area and adopt a Negative Declaration of Environmental Impact for the project; 2) Introduce an ordinance pre-zoning land within the Margarita Area, consistent with the Margarita Area Specific Plan; REPORT-IN-BRIEF The action before the Council does not represent the end of the annexation process; instead, this step launches the beginning of the formal public process by initiating an annexation application. The Planning Commission has recommended that the City Council authorize an application to the Local Agency Formation Commission (LAFCO) for annexation of 620 acres of land in the Margarita Area and Airport Area. Annexation of this land is consistent with the General Plan, which says that "the City intends to actively pursue annexation of the Airport Area." The Commission's recommendation is also consistent with the annexation phasing plan approved by the City Council on February 20, 2007. The City began providing information to property owners regarding annexation in March, 2006. Discussions with property owners indicate that a majority are likely to support the annexation, and some owners remain undecided. About 13% of property owners in the annexation area have expressed opposition for reasons including the cost of the City's business tax and utilities user fees, the timing of services and development approvals, and City property development standards that are more restrictive in some cases than County standards (e.g. creek setback requirements). LAFCO has complete discretion over the annexation boundaries proposed by the City. LAFCO considers many factors in its decision including promoting orderly development, preventing sprawl, preserving open space and prime agricultural lands, providing housing for persons and families of all incomes, and efficient extension of governmental services. Achieving these policy imperatives necessitates a logical, contiguous City limit line, which is reflected by the recommended annexation boundaries. Margarita Area and Airport Area Annexation Page 2 Property owners and residents of the expansion area who are registered voters have the ability to protest annexation after it is approved by LAFCO. While some level of protest is unavoidable, analysis of the proposed annexation area and discussions with property owners indicates that it is more likely that there is sufficient support for the annexation. However, City staff has a large role to play during the LAFCO process to insure that those affected by the annexation have accurate information to base their decisions on, and high levels of outreach will continue throughout this phase. Not initiating the application until even greater support is evidenced is an option. However, this option is not recommended. Adding more time to what has already been an exceptionally long process could discourage more property owners than it would gain in support. In the meantime, added development in the County will continue to the detriment of City control of orderly growth and provision of services. DISCUSSION Situation/Previous Review On March 28, 2007, the Planning Commission voted 5-1 (McCoy) to approve a resolution recommending that the City Council authorize an application to the Local Agency Formation Commission (LAFCO) for annexation of 620 acres of land in the Margarita Area and Airport Area annexation (Attachment 1, Planning Commission resolution with exhibit showing boundaries of proposed annexation). Attachment 2 includes the minutes from the Planning Commission meeting. The recommendation is consistent with the adopted phasing plan, which was reviewed by the City Council on February 20, 2007 (Attachment 3, Annexation Phasing Plan). Council action on the Planning Commission recommendation is necessary to authorize an application to LAFCO and begin the annexation proceedings. Background The Margarita Area and the Airport Area are identified as major City expansion areas in the General Plan. Planning efforts for the Airport Area have involved both the City and County and began in the mid-1970's. The City's residential growth management ordinance has allocated dwelling units to the Margarita Area area since 1999. Specific plans were approved for the Margarita Area and Airport Area in October 2004 and August 2005, respectively. These specific plans satisfy the key prerequisite for annexation and development required by the General Plan. Annexation is now proposed to insure orderly development of the expansion areas,consistent with General Plan policy. Annexation Will Result in a Logical City/County Boundary and Furthers City Goals Annexation is one of the most effective tools available to the City to insure that future development in the expansion areas is consistent with City property development standards and policies for growth management. All of the land proposed for annexation is located within the City's Sphere of Influence, which was updated in 2006 by the City Council and Local Agency Formation Commission (LAFCO). Margarita Area and Airport Area Annexation Page 3 Over the past several years, interim annexations and development have occurred within the Airport Area and Margarita Area resulting in a complicated and circuitous City limit line. As City services such as street maintenance, utilities, police and fire have extended into these areas, it has become more difficult to determine who is eligible for these services and who is still located in the unincorporated County. As a result, property owners, residents and businesses adjacent to the City limit line receive the benefit of City services without sharing the cost. For instance, since 2005 City police and fire have responded to about 100 calls for service for unincorporated parcels adjacent to the City limits at the request of County service providers. The proposed annexation is intended to address this situation by providing for a more logical and contiguous City limit line, consistent with LAFCO requirements. The subsequent annexation of Phase lb, and perhaps Phase 2, will further improve the current situation. A clear and logical boundary between the City and County will also provide for better implementation of the City's policies and standards regarding development, open space preservation and airport compatibility. For example, new development in the Airport Area will be required to dedicate open space lands or pay an in-lieu fee in support of City open space preservation efforts. Such fees, paid through the interim annexation program, were instrumental in the protection of the Brughelli property south of Buckley Road. The City's plans for the annexation area are also consistent with the County of San Luis Obispo's SLO Area plan, which shows all of the proposed annexation area within an Urban Services Boundary line, where the City is the sole urban service provider. A closer look at each of the annexation areas is included in the attached Planning Commission agenda report Attachment 4). Annexation is Consistent with the General Plan Annexation of the Margarita Area and the Airport Area is consistent with the General Plan and with the specific plans prepared for the respective annexation areas. The following General Plan policies are listed in support of the proposed annexation: Land Use Element Policy 7.3 City Annexation and Services: The City intends to actively pursue annexation of the Airport Area. Land Use Element Policy 1.13.2 Annexation Purpose and Timing Annexation should be used as a growth management tool, both to enable appropriate urban development and to protect open space. Areas within the urban reserve line which are to be developed with urban uses should be annexed before urban development occurs. The City may annex an area long before such development is to occur, and the City may annex areas which are to remain permanently as open space. An area may be annexed in phases, consistent with the city-approved specific plan or development plan for the area. Phasing of annexation and development will reflect topography, needed capital facilities and funding, open space objectives, and existing and proposed land uses and roads. J Margarita Area and Airport Area Annexation J Page 4 Analysis: The proposed annexation will allow the City to manage growth in the expansion areas in a manner that is consistent with the City's long term vision, as expressed in the Margarita Area Specific Plan and the Airport Area Specific Plan. If annexation is not approved, the County would remain the jurisdiction with land use authority. Many properties in the Margarita Area and Airport Area have difficulty meeting water supply and wastewater treatment requirements. Residents and employees in some areas are forced to drink bottled water. Traditional septic systems can't be permitted in some locations because of poor percolation and the regulatory process makes alternative systems difficult to permit. Development of this area in the City, consistent with City plans and enabled by City services is the objective established in the General Plan. All of the land proposed for annexation is located within the City's Urban Reserve Line,except those areas that will be designated open space. Land Use Element Goal 12: Emphasize more productive use of existing commercial buildings and land areas already committed to urban development. Analysis: Annexation allows for orderly development. New buildings that are developed in the City must have City water and sewer service and must improve adjacent roads to City standards. Therefore, potential development sites that are farther away from existing water lines, sewer lines and roads are less likely to' be developed until this infrastructure "reaches"them. In the unincorporated County, development is scattered because it is not connected to these urban service systems. Development in the County is also less intense because on-site areas must be reserved for water wells and septic systems. These systems cannot support large numbers of employees. Therefore, land is used less efficiently when it is developed under County standards, which creates greater pressure to sprawl" through subsequent development of greenbelt land that is not under City control. Land Use Element Policy 1.13.3.0 Required Plans: For the Margarita Area, annexation may occur following the City Council's 1998 approval of a draft specific plan as the project description for environmental review. Except for City parks or sports fields,further development shall not occur until the City has completed environmental review and adopted a specific plan. Private properties that are annexed before the specific plan is adopted shall be zoned Conservation/Open Space upon annexation, and shall be zoned consistent with the specific plan when it is adopted. Analysis: The Margarita Area Specific Plan has been adopted. Land that was previously annexed in the area has been zoned for residential use consistent with the specific plan. The remaining portions of the specific plan area should now be annexed to foster orderly development of the area, consistent with City growth management regulations. Margarita Area and Airport Area Annexation Page 5 Housing Element Program 6.3.5: Specific plans for designated Expansion Areas shall include appropriately zoned land to meet the City's regional housing need for dwellings affordable to very low-income and low-income households, including R-3 and R-4 zoning. Analysis: A minimum of 15% of the housing produced in the Margarita Area will be deed- restricted based on the City's Inclusionary Housing Requirement and Affordable Housing Standards. Over 20% of the total dwellings units in the area will be developed in R-3 and R-4 zones. Property Owner Outreach Let by both Community Development and Economic Development staff, the City has also assumed a major role by informing property owners, residents and businesses within the annexation area of the proposed governmental change, and by working with those affected to . address their concerns. This pro-active approach is expected to help facilitate the transition after the annexation occurs and contribute to the success of the annexation. Outreach efforts to property owners, business owners and residents have included direct mailings, informational meetings, notification of planned hearings and numerous "one-on-one" conversations. In an effort to provide up to date information on timelines, fees and other relevant data, staff is maintaining a web page located at: http://www.slocity.org/communitydevelopment/annexation.asp Feedback from property owners, business owners and residents was used to develop the phasing schedule, which was supported by the City Council on February 20, 2007. However, approval of the proposed annexation boundaries does not stop the process of City involvement with property owners and residents. City staff will continue to work with those affected to provide information, develop pre-annexation agreements where appropriate, and assist in preparing for the transition from County to City governmental services. Annexation Procedures 1. City Role The City's role in the annexation process is that of `applicant.' The City's application to LAFCO must include a resolution of the Council stating its intention to annex the land within the proposed annexation boundaries. A complete annexation application will also include pre- zoning information for the land to be incorporated and a"plan for services" to show how the City will address utilities, public safety and other government services in the annexed territory Attachment 5, Annexation Plan for Services). In addition to these roles, the City is the lead agency for the environmental review required by CEQA. As mentioned previously, the City will also continue to work with affected property owners and residents in the area after the Council establishes the boundaries of the proposed annexation. City staff's experience to date with property owners and residents is that effective communication with these individuals leads to a better understanding of the benefits provided through City services and increased support for the annexation proposal. S i I I\ Margarita Area and Airport Area Annexation Page 6 2. LAFCO Role The criteria that LAFCO staff uses to make recommendations on proposed annexations are based on the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. Any proposal to extend services into an unincorporated area must be consistent with the policies of the Act, which include promoting orderly development, preventing sprawl, preserving open space and prime agricultural lands, providing housing for persons and families of all incomes, and efficient extension of governmental services. To meet these policy imperatives,proposed annexation areas must be contiguous and they must be consistent with local and regional land use plans. LAFCO also considers the availability of water and other services, regional housing needs, information from land owners, and land-use designations in their boundary change decisions. The detailed planning that the City of San Luis Obispo has completed for the proposed annexation is directly related to the policy imperatives of the Cortese-Knox-Hertzberg Act. The City's specific plans, the Final Program EIR for the specific plan and facilities master plans, and the Annexation Plan for Services combined with LAFCO's Sphere of Influence study provide LAFCO with a strong basis for approval of the proposed annexation. 3. Property Owner and Registered Voters Role Property owners within the annexation area are not required to perform any actions for annexation of their property to take place. In other woids, if LAFCO approves the annexation and property owners do nothing in response, the annexation will take effect. Property owners do retain the ability to protest LAFCO's approval of annexation. The annexation area is considered inhabited because it includes more than 12 registered voters. Therefore, residents within the annexation area that are registered voters may also protest the annexation. According to State law (Government Code Section 57075-57090), property owners or registered voters who live within the annexation area may protest the annexation within 30 days of the LAFCO approval with the following thresholds established: Who Can Protest? Threshold Effect of Protest Property Owners At least 25%, but less than 50%, of Protest results in a majority vote of property owners who also own 25% registered voters who live in the of the assessed land value in the annexation area annexation area Property Owners More than 50% of property owners Annexation is terminated who also own 50% of the assessed land value in the annexation area Registered Voters At least 25%, but less than 50%, of Protest results in a majority vote of registered voters who live in the registered voters who live in the annexation area annexation area Registered Voters More than 50% of registered voter Annexation is terminated who live in the annexation area Margarita Area and Airport Area Annexation Page 7 Would a Protest of the Phase 16 Annexation Be Successful? The recommended annexation boundaries were developed based on the need for a logical, contiguous City limit line balanced by discussions with property owners, which began in early 2006. City staff evaluated property owner support for annexation factoring in the total number of owners and respective land values. This is an on-going process because assessed land values change when property ownership changes. Contact with property owners and registered voters has been a large part of the staff effort to determine the viability of the annexation boundary. Property owner concerns fall into three categories, which are examined below. No registered voter concerns with annexation have been expressed. 1. Property Owner Concerns Property owner concerns for this phase of the annexation can be divided into three primary categories: (1) the cost of City business tax and utilities user fees, (2) the timing of services and development approvals, and (3) City property development standards that are more restrictive in some cases than County standards (e.g. creek setback requirements). As City staff continues to provide information to property owners within the annexation area, we hope that concerned owners will develop a better understanding of the City's long-term plans and service advantages and become more comfortable with the proposed change. At this point, the proposed annexation is promising from the standpoint of a property owner protest. This is because, thus far, 9 of the 66 parcels (13.6%) within the annexation area, have formally expressed opposition to the proposal. This opposition is not absolute in all cases and City staff will continue to help resolve issues for property owners that have expressed concerns. 2. Registered Voter Concerns As an "inhabited" annexation area, registered voters also have the ability to protest LAFCO approval. Among the residents of the area, only a portion of them are registered to vote. Staff has compiled a list of the voters and has made an effort to contact each person on the list to evaluate voter support. Response have been positive to City staff telephone outreach. A majority of those contacted by City staff have stated their support for the annexation. In fact, no resident of the annexation area has expressed opposition. However, there is a factor of uncertainty because staff has not been able to contact all of the registered voters, and the number of residents who are eligible to protest the annexation will continue to change based on voter registration numbers. It does appear that if the City continues to make residents aware of the improved services (and lower costs_ in some circumstances) that they will receive after annexation, the more likely residents are to look upon annexation in a favorable light. For instance, about 51% (20 of 39) of the residents in the annexation area who are currently registered to vote live in the Hidden Hills.Mobile Home Park. As permitted by Municipal Code Section 13.16.020, the City has been providing sewer service to Hidden Hills for over twenty years because the ground in this area is poorly suited to sewage disposal through septic systems. 1- 7 Margarita Area and Airport Area Annexation Page 8 As an outside user, the park currently pays double the rate of in-city users for this sewer service. Upon annexation, the sewer rates in the park would be reduced by 50%. Staff has also been informed that the residents of the park drink bottled water because of the poor quality of ground water in the area, which is currently their only other source of potable water. Upon annexation, the park would be eligible for a water connection. City emergency services are viewed upon favorably by residents in the annexation area. Based on recent conversations with residents of Hidden Hills, it is clear that these residents perceive City emergency services, such as police and fire response, as a significant improvement over the current emergency service providers. Residents of Hidden Hills may be used to seeing City police and fire personnel because requests for their service are frequently made by County agencies. .. Although City staff cannot provide the City Council with certainty regarding the outcome of a protest, it does appear that the best strategy to insure success is to continue to provide accurate information to those affected so people understand the changes that will occur and will be able to make an informed decision regarding whether or not to protest LAFCO approval of the annexation. Pre-Annexation Agreements for Interim Sewer Service On February 20, 2007, the City Council directed staff to work with certain property owners adjacent to existing sewer lines regarding interim City sewer prior to annexation. The issue was raised by the potential for an agreement with the Fiero Lane Mutual Water Company (FLMWC) that could have alleviated the need for substantial improvements associated by the airport runway extension project. A settling pond in this location needs to be relocated to the east side of Broad Street. Although discussions with FLMWC regarding annexation continue to move in a positive direction, interim sewer service would not remove their other obligations to construct the settling pond and the agreement is not being pursued further. In another case (Dolezal), it is unclear if interim sewer service could even be provided in advance of the annexation because of the time it would take to process the required ordinance amendments and outside users agreements with LAFCO. Therefore, Mr. Dolezal concurs that it would be best to simply move forward without further delay on the Phase la annexation. Environmental Review In 2005, a Program EIR was certified for the Airport Area and Margarita Area Specific Plans and Related Facilities Master Plans (City Council Resolution No. 9726), addressing anticipated environmental effects associated with future development. A subsequent environmental document has been prepared with a focus on the specific impacts relative to annexation Attachment 6). Based on the findings included in the Initial Study, a Negative Declaration of Environmental Impact is recommended. The annexation process itself results in no physical change to the environment. Margarita Area and Airport Area Annexation Page 9 CONCURRENCES All City departments with responsibility for providing services to the proposed annexation areas have been involved in the development of the Plan for Services and the specific plans that include the development standards for these areas. City staff has been working closely with LAFCO staff regarding preparation of the formal annexation application, and has also kept the County aware of our activities. In addition, staff has met with several members of the San Luis Obispo Chamber of Commerce to answer questions regarding the annexation. FISCAL IMPACT When the General Plan was prepared, it was accompanied by a fiscal impact analysis, which found that overall the General Plan was fiscally balanced. Accordingly, since the proposed project is consistent with the General Plan, it has a neutral fiscal impact. ALTERNATIVES 1. The City Council can determine that the proposed annexation boundaries should be modified and direct staff to revise the boundary map prior to submitting an application to LAFCO. This alternative is not recommended because the proposed boundaries are consistent with the phasing plan approved by the City Council on February 20, 2007. 2. The City Council can continue consideration of the proposed annexation and request additional information from staff, or attempt to address all existing potential protest. This alternative is not recommended since it will never be possible to gain support of all property owners. In fact, further delay may cause other property owners to lose interest in annexation, potentially worsening the existing land control, boundary, and service issues in the area. ATTACHMENTS Attachment 1: Planning Commission Resolution#5475-07 Attachment 2: Planning Commission Minutes (3-28-07) Attachment 3: Annexation Phasing Plan approved by City Council (2-20-07) Attachment 4: Planning Commission Agenda Report (3-28-07) Attachment 5: Annexation Plan for Services Attachment 6: Initial Study of Environmental Impact and Negative Declaration Attachment 7: Draft resolution of intention for the proposed annexation Attachment 8: Draft ordinance pre-zoning land in the Margarita Area consistent with the MASP AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE Airport Area Specific Plan Margarita Area Specific Plan AASP,MASP and Related Facilities Master Plans EIR G:\CD-PLAN\MCODRON\AASP\annexation\car(phase l boundary).DOC 1-9 Attachment 1 PLANNING COMMISSION RESOLUTION NO. 5475-07 A RESOLUTION OF THE SAN LUIS OBISPO PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL ADOPT A RESOLUTION OF INTENTION TO ANNEX APPROXIMATELY 620 ACRES OF LAND IN THE MARGARITA AREA AND AIRPORT AREA, ADOPT A PRE-ZONING ORDINANCE FOR LAND IN THE MARGARITA AREA AND A NEGATIVEDECLARATION OF ENVIRONMENTAL IMPACT FOR THE PROJECT ANNX/ER 172-05 WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on March 28, 2007, for the purpose of considering Planning Application AANX/ER 172-05, a project to annex the remaining unincorporated portions of the Margarita Area and a significant portion of the Airport Area; and WHEREAS, said public hearing was for the purpose of formulating and forwarding recommendations to the City Council of the City of San Luis Obispo regarding the project; and WHEREAS, the Margarita Area Specific Plan was adopted by the City Council on October 12, 2004, and the Airport Area Specific Plan was adopted by the City Council on August 23, 2005, satisfying the requirements of the General Plan (Land Use Element policies 1.13.3, 2.3.1, 7.3 and 7.4), which require adoption of specific plans prior to annexation; and WHEREAS, the proposed annexation is necessary for the City to fully implement the adopted specific plans; and WHEREAS, the Planning Commission considered the Initial Study and Mitigated Negative Declaration of Environmental Impact (ER 172-05) for the project, and determined that the document adequately addresses the potential environmental effects of the proposed annexation; and WHEREAS, the Planning Commission has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of San Luis Obispo as follows: Section 1. Findings. Based upon all the evidence, the Commission makes the following findings: 1. Annexation of land in the Margarita Area and Airport Area will promote the public health, safety and welfare by ensuring that all new development complies with the comprehensive land use plans and property development standards established in the Margarita Area Specific Plan and Airport Area Specific Plan. Attachment 1 Planning Commission Resolution No. 5475-07 Page 2 2. The proposed annexation includes all of the remaining land in the Margarita Area that has not already been annexed, which will facilitate orderly development. The land proposed for annexation includes the site of the regional drainage facility, remaining portions of the right- of-way for Prado Road, the neighborhood park site, the neighborhood commercial site, open space land, and additional land zoned for residential and commercial development. 3. The proposed annexation of land in the Airport Area is consistent with Land Use Element Policy 7.3, which says that the City will actively pursue annexation of the Airport Area. 4. The proposed Negative Declaration for the project adequately addresses the environmental impacts of the project because annexation does not create any environmental effects that are different from those identified in the Final Program EIR for the Margarita Area and Airport Area Specific Plans and Related Facilities Master Plans. Section 2. Environmental Review. The Planning Commission does hereby recommend that the City Council adopt a Negative Declaration for the project. Section 3. Recommendation. The Planning Commission does hereby recommend that the City Council adopt a resolution of intention to annex the land identified in Exhibit A, and adopt a pre-zoning ordinance for the Margarita Area as shown in Exhibit B. On motion by Commr. Ashbaugh, seconded by Commr. Brodie, and on the following roll call vote: AYES: Brodie, Ashbaugh, Christianson, Stevenson, Gould-Wells NOES: McCoy REFRAIN: ABSENT: Miller The foregoing resolution was passed and adopted this 28th day of March, 2007. it n bo"'I Kim Murry, Secretary Planning Commission Attachment 1 l t Q 4 y r O 4 X Y r 4 o C N Q t t1 i 1 o d c o v h 1 Q iI 6 ro 1 F LL cc o r m N S Mi Atta.hment 1 w Z+y 3 yet Broad CD a a v C9 dN co v O O x Z O U U U N' m _ U U '` a n d m a r IL IF a o 0 0U U 8 8 8 N i m m £ £EL m Z Z a° ii v O O m U a a U U Z Z (n ?L Q Wto N C N w!d- d V V N Na N , v_ z =mm 0 d Z` p wn r Odrn N c c O 2 ydy m O > N FN r O 'x J U o i aN O N J C U 3 Attachment 2 SAN LUIS OBISPO PLANNING COMMISSION MINUTES March 28, 2007 CALL TO ORDER/PLEDGE OF ALLEGIANCE ROLL CALL: Present: Commissioners Amanda Brodie, Diane Gould-Wells; Charles Stevenson, John Ashbaugh, Jason McCoy, Vice-Chair Carlyn Christianson Absent: Chairperson Andrea Miller Staff: Natural Resources Manager Neil Havlik, Principal Transportation Planner Peggy Mandeville, Deputy Community Development Director Kim Murry, Assistant Planner Michael Codron, Community Development Director John Mandeville, Economic Development Manager Claire Clark, Assistant City Attorney Christine Dietrick and Recording Secretary Jill Francis ACCEPTANCE OF AGENDA: Commissioners or staff may modify the order of items. The agenda was accepted as written. MINUTES: Minutes of January 24, 2007. Approve or amend. The minutes of January24, 2007 were approved as amended. PUBLIC COMMENT: There were no comments made from the public. PUBLIC-HEARINGS: 1. 3000 Calle Malva. GPC 29-07; General Plan Conformity Report fora conservation easement covering 71 acres of open space land on a 98 acre parcel; C/OS-100 zone, City of San Luis Obispo, applicant. (Neil Havlik) Natural Resources Manager Neil Havlik presented the staff report recommending the Commission determine and report to the City Council that the proposed property acquisition consistent with City's General plan. PUBLIC COMMENTS: There were no comments made from the public. J Attachment 2 Planning Commission Minute'L March 28,2007 Page 2 COMMISSION COMMENTS: Commr. Ashbaugh asked if the property is currently used for cattle grazing, and if cattle grazing would continue with the proposed easement. On motion by Commr. Stevenson to find and report to the City Council that the acquisition both in fee and easement is in conformity with the City's General Plan. Seconded by Commr. McCoy. AYES: Commrs. Brodie, Ashbaugh, Christianson, McCoy, Stevenson, Gould-Wells NOES: None RECUSED: None ABSENT: Commr. Miller The motion passed on 6:0 vote. 2. Open Space. GPC 30-07; General Plan Conformity Report for a gift of 315 acres of open space land located north of the city on TV Tower Road; City of San Luis Obispo, applicant. (Neil Havlik) Natural Resources Manager Neil Havlik presented the staff report recommending the Commission determine and report to the City Council that the proposed property acquisition consistent with City's General plan. PUBLIC COMMENT: Jan Manx, 265 Albert Drive, ECOSLO, spoke in support of the request. There were no further comments made from the public. COMMISSION COMMENT: On a motion by Commr. Stevenson to determine and report to the City Council, that the Proposed property acquisition is consistent with the City's General Plan. Seconded by Commr. Ashbaugh. AYES: Commrs. Brodie, Ashbaugh, Christianson, McCoy, Stevenson, Gould-Wells NOES: None RECUSED: None ABSENT: Commr. Miller The motion passed on 6:0 vote. 3. Citywide. GPI and ER 21-07; 2007 Bicycle Transportation Plan Update and Environmental Review; City of San Luis Obispo, applicant. (Peggy Mandeville) Principal Transportation Planner Peggy Mandeville presented the staff report recommending that the Commission recommend to the City Council approval of the/—/r Planning Commission Minutes Attachment 2. March 28, 2007 Page 3 update to the 2002 Bicycle Transportation Plan and adoption of a Mitigated Negative Declaration of Environmental Impact. She gave a summary of grant funding and improvements associated with the approved 2002 Bicycle Plan was presented followed by a discussion of new/amended policies, definitions, standards and bikeways, noting that this update has been in process for five years. PUBLIC COMMENT: Kevin Christian, Bicycle Advisory Committee Chairperson (BAC), demonstrated the web site information showing aerial photos and documentation of the committee's work. Jean Anderson, BAC member and certified bicycle 'instructor spoke in support of the plan and provided copies of a Handy Guide for Cyclists. Adam Fukushima of the Bicycle Coalition, spoke in favor of the ranking system being used by the BAC and the Plan in general, and supported the updated plan. COMMISSION COMMENT: Commissioners discussed the plan, corrected several minor errors and gave some suggestions. Commr. Ashbaugh suggested a definition of a bicycle be included, and noted some minor clerical errors to be corrected. It was noted that the definition of a bicycle is included in the State Code. On motion by Commr. Ashbaugh to recommend to the City.Council approval of the 2007 Bicycle Plan (with corrections noted) and adoption of the Mitigated Negative Declaration for the voiect. Seconded by Commr. Brodie. AYES:Commrs. Brodie, Ashbaugh, Christianson, McCoy, Stevenson, Gould-Wells NOES:None RECUSED: None ABSENT: Commr. Miller The motion passed on A 6:0 vote. 4. Airport and Margarita Area. ANNX and ER 172-05; Review of the City of San Luis Obispo's proposal to annex 620 acres of land and environmental review, City of San Luis Obispo, applicant. (Michael Codron) Michael Codron presented the staff report with a discussion of phasing, numbers of parcels affected, public outreach that was conducted, annexation costs and the LAFCO process, recommending that the Commission recommend to the Council, approval of a resolution of intention to annex approximately 620 acres of land in the Margarita Area and Airport Area, a pre-zoning ordinance consistent with the Margarita Area Specific Plan, and a Negative Declaration of Environmental Impact. G Attachment 2. Planning Commission Minute:. , March 28,2007 Page 4 PUBLIC COMMENT: Raymond Hanson, 3960 South Higuera Street, had a concern regarding property located at 4080 Horizon Lane. He supports the future annexation of this property but felt further study is necessary and corrections need to be made to the map. Jan Marx, mobile home owner, was pleased that the mobile home park will be coming into the City but had reservations with the zoning that allows other residential uses, and expressed the need for a mobile home ordinance. Terry Simons, Orcutt Road, would like to see the Margarita Area annexation move forward if Airport Area issues slow the process down. Robert Miller, business owner on Suburban Road, SLO, expressed concerns with utility bills and taxes that would be imposed and does not want his property to be annexed. Dale Whtison, business owner near Unocal property, would like to change the way his property is zoned in the AASP, from Manufacturing to Service-Commercial. Charles Senn, 178 Broad Street and property owner in the airport area, noted various concerns owners and businesses have with the proposed annexation. Ty Safreno, 1621 Higuera Street and business owner on Tank Farm Road, felt his property should not be in Phase I because services will not be immediately available, and additional taxes will be imposed. Bill Thoma, business owner 3562 Tank FarmRoad, felt some of the costs of the annexation should be shared with the larger community if annexation meets community- wide goals. John Wallace, 4415 Broad Street, and property owner on Suburban Road/Horizon, felt the business owners along Suburban Road do not need City services and would not welcome the added fees. Carol Florence, representative of owners in the Airport area, noted concerns with water and sewer availability, and felt individual properties should be looked at separately. Scott Lathrop, business owner, expressed conflicting thoughts because he is involved in two properties in Phase 1A, one of which he wants annexed and the other which he does not want annexed because of the uncertainty of timing on sewer service. Richard Ferris, 365 Branch Street, felt the map used was inaccurate and expressed concerns with the annexation, primarily with the City's required creek setbacks in light of the existing water detention system on Unocal land. There were no further comments made from the public. 17 Planning Commission Minutes Attachment 2 March 28, 2007 Page 5 COMMISSION COMMENT: The Commission discussed the testimony and asked for staff clarification on several issues, including treatment of non-conforming uses, timing of the Tank Farm Lift Station project, pre-zoning, use of pre-annexation agreements, and preparation of the boundary map description. Staff committed to continue working with individual owners to discuss concerns. Commr. Ashbaugh expressed support of the annexation. Commr. Brodie requested staff discuss specific comments made by the public. Commr. McCoy asked about business owners changing zoning while keeping non- conforming uses. He did not agree with including the area south of Tank Farm Road into the annexation without testimony from the major landholder or representative, or compelling testimony from property owners south of Tank Farm Road that they support the annexation. Commr. Stevenson asked about the Prado Road interchange, cost evaluation, fair share, and traffic mitigation concerns. Economic Development Manager Claire Clark responded to concerns regarding building permits that were issued by the County prior to annexation would still be allowed by the City after annexation. On motion by Commr. Ashbaugh to approve a resolution of intention to annex approximately 620 acres of land in the Margarita Area and Airport_Area, a pre-zoning- ordinance re-zoningordinanceconsistentwiththeMargaritaAreaSpecificPlanandNegativeDeclarationof Environmental Impact. Seconded by Commr. Brodie. AYES: Commrs. Brodie, Ashbaugh, Christianson, Stevenson and Gould-Wells NOES: Commr. McCoy RECUSED: None ABSENT: Commr. Miller The motion passed on a 5:1 vote. Commr. Stevenson moved a recommendation to the City Council that if the Airport Area annexation is delayed, annexation of the Margarita Area should continue to move forward and that negotiations with individual property owners should continue to occur with respect to their particular concerns and timing of services. Seconded by Commr. Brodie. AYES: Commrs. Brodie, Christianson, McCoy, Stevenson, Gould-Wells NOES: Commr. Ashbaugh ABSENT: Commr. Miller ABSTAIN: None The motion passed on a vote of 5:1. 8. Planning Commission Minute _ AttaChRlSilt 2 March 28, 2007 Page 6 A motion to extend the meeting past 11:00 p.m. was taken and passed. COMMENT AND DISCUSSION: 5. Staff A. Request to consider adding a special Planning Commission meeting on April 18, 2007 for a study session on the Broad Street corridor design plan. Deputy Director Kim Murry requested consideration of a special Planning Commission meeting on April 18, 2007 in order to schedule the introduction of the South Broad Street Corridor Plan with the Commission. The Planning Commission agreed to add the date as a special meeting. B. Agenda Forecast Deputy Director Kim Murry indicated that a Planning Commissioner retreat was in the planning stages and that there were two dates under consideration: May 16th and June 11th. The retreat is planned to be a 6 p.m. to 9 p.m. meeting held off-site to discuss Commission operation and issues. Planning Commissioners will respond via email as to their preferred date for this session. Deputy Director Murry also gave a preview of items currently anticipated for the April 11, 2007 Commission meeting: Airport Hotel project, City's annual report on the General Plan, yearly consideration of by-laws, installation of the new Commissioner and election of officers. 6. Commission Commissioner Stevenson expressed appreciation of service by Jason McCoy to the Planning Commission for the last term. He indicated that Commissioner McCoy brought valuable insight as a working architect and a practical point of view that will be missed. Acting Chair Carlyn Christianson and Commissioner John Ashbaugh added their thanks. ADJOURMENT: With no further business before the Commission, the meeting adjourned at 11:07 p.m. to the regular meeting of the Planning Commission scheduled for Wednesday, April 11, 2007 at 7:00 p.m. in the Council Chamber of City Hall, 990 Palm Street. Respectfully submitted by Approved by the Architectural Review Commission on April 11, 2007 Jill Francis Recording Secretary Diane R. Stuart, CM Management Assistant Attachment 3 Al?&`ffff fer(}t 34JC o L, 4 CO C L C c mCoCD r Q d Z y t i i.: r d a a m EL CL I. -, , s. awl M.a l . e t LL L 16 8=1 ennue 3 c IL I Y R• _ 4{r ti IN X Co d F Attachment 4 CITY OVSAN LUIS OBISPO PLANNING COMMISSION AGENDA REPORT ITEM# 4 FROM: Kim Murry, Deputy Director MEETING DATE: March 28, 2007 Prepared By: Michael Codron, Associate Planner FILE NUMBER: ANNX/ER 172-05 PROJECT ADDRESS: Margarita Area and Airport Area SUBJECT: Review of proposed annexation boundaries and a resolution of intention to annex approximately 620 acres of land in the Margarita Area and Airport Area, a pre-zoning ordinance, and a Negative Declaration of Environmental Impact for the project. SUMMARY RECOMMENDATION Recommend that the City Council approve a resolution of intention to annex approximately 620 acres of land in the Margarita Area and Airport Area, a pre-zoning ordinance consistent with the Margarita Area Specific Plan and a Negative Declaration of Environmental Impact. BACKGROUND Situation Annexation of the Margarita Area and Airport Area has been contemplated for over 25 years, and has bee a General Plan goal since 1994. The pre-requisites for annexation, adoption of specific plans, have been accomplished. Partial annexation of both areas has occurred under an interim annexation program. On February 20, 2007, the City Council approved a comprehensive annexation strategy and directed staff to pursue the first phase of the overall annexation. This first phase includes 620 acres of land, encompassing 66 parcels with 49 different property owners. Attachment 1 includes the proposed boundaries of this first phase. Planning Commission Role The role of the Planning Commission is to make a recommendation to the City Council on the proposed annexation. The steps necessary to formally start the process are listed below: 1) Adoption of a resolution of intention to annex 620 acres of land in the Margarita Area and Airport Area and authorization for an application to be filed with the Local Agency Formation Commission(LAFCO) to consider the annexation request. 2) Adoption of a pre-zoning ordinance for the Margarita Area, which would establish the zoning to go into effect upon annexation. A pre-zoning ordinance for the Airport Area has already been approved (see Attachment 2). Attachment 4 Margarita Area and Airport AAYea Annexation Page 2 3) Adoption of an environmental document consistent with, CEQA requirements. A Negative Declaration of Environmental Impact is recommended. The Planning Commission's role is also to review the Plan for Services (Attachment 3), which is a key component of the LAFCO application. Equally important, the Planning Commission will take public testimony from property owners, business owners and other interested parties regarding the annexation. Notification was sent to over 450 individuals regarding the public hearing. EVALUATION Background Policies Annexation is one of the most effective tools available to the City to insure that future development is consistent with City property development standards and policies for growth management. All of the land proposed for annexation is located within the City's Sphere of Influence, which was updated in 2005 by the City Council and Local Agency Formation Commission(LAFCO). Annexation of the Margarita Area and the Airport Area is consistent with the General Plan and with the specific plans prepared for the respective annexation areas. The following General Plan policies are listed in support of the proposed annexation: Land Use Element Policy 73 City Annexation and Services: The City intends to actively pursue annexation of the Airport Area. Analysis Annexation is now being proposed consistent with the direction provided by this policy. Land Use Element Policy 1.13.2 Annexation Purpose and Timing: Annexation should be used as a growth management tool, both to enable appropriate urban development and to protect open space. Areas within the urban reserve line which are to be developed with urban uses should be annexed before urban development occurs. The City may annex an area long before such development is to occur, and the City may annex areas which are to remain permanently as open space. An area may be annexed in phases, consistent with the city-approved specific plan or development plan for the area. Phasing of annexation and development will reflect topography, needed capital facilities and funding, open space objectives, and existing and proposed land uses and roads. Analysis: The proposed annexation will allow the City to manage growth in the expansion areas in a manner that is consistent with the City's long term vision, as expressed in the Margarita Area Specific Plan and the Airport Area Specific Plan. If annexation is not approved, the County would remain the jurisdiction with land use authority. All of the land proposed for annexation is located within the City's Urban Reserve Line, except those areas that will be designated open space. Land Use Element Goal 12: Emphasize more productive use of existing commercial buildings and land areas already committed to urban development. Attachment 4 Margarita Area and Airport urea Annexation Page 3 Analysis: Annexation allows for orderly development. New buildings that are developed in the City must have City water and sewer service and must improve adjacent roads to City standards. Therefore, potential development sites that are farther away from existing water lines, sewer lines and roads are less likely to be developed until this infrastructure"reaches" them. In the unincorporated County, development is scattered because it not connected to these urban service systems. Development in the County is also less intense because on-site areas must be reserved for water wells and septic systems. These systems cannot support large numbers of employees. Therefore, land is used less efficiently when it is developed under County standards. Land Use Element Policy 1.133.0 Required Plans: For the Margarita Area, annexation may occur following the City Council's 1998 approval of a draft specific plan as the project description for environmental review. Except for City parks or sports fields, further development shall not occur until the City has completed environmental review and adopted a specific plan. ... Private properties that are annexed before the specific plan is adopted shall be zoned Conservation/Open Space upon annexation, and shall be zoned consistent with the specific plan when it is adopted. Analysis: The Margarita Area Specific Plan has been adopted. Land that was previously annexed in the area has been zoned for residential use consistent with the specific plan. The remaining portions of the specific plan area should now be annexed to foster orderly development of the area, consistent with City growth management regulations. Housing Element Program 63.5: Specific plans for designated Expansion Areas shall include appropriately zoned land to meet the City's regional housing need for dwellings affordable to very low-income and low-income households, including R-3 and.R-4 zoning. Analysis: A minimum of 15% of the housing produced in the Margarita Area will be deed- restricted based on the City's Inclusionary Housing Requirement and Affordable Housing Standards. Over 20% of the total dwellings units in the area will be developed in R-3 and R-4 zones. Attachment 4 Margarita Area and Airport Area Annexation Page 4 The Proposed Annexation Areas Margarita Area Properties The Margarita Area Specific Plan (MASP) was approved in 2004. A major portion of this residential expansion area was annexed in 2001 and designated Conservation/Open Space. When the MASP was subsequently approved, the residential zoning took effect. In 2006, the City approved three major subdivisions in this area that will accommodate approximately 375 dwelling units. At build-out, the Margarita Area is planned to accommodate 868 residences of varying type, size, and affordability. Q a_Ga2. y q O ILU-0 O.pltl ROBO4vyoProposedMaroaritaArea AnnexationPrado oadOE3Anrrezation Boundary Un° 3 0 a The portion of the Margarita Area now proposed for annexation includes approximately 250 acres on five privately owned land parcels and one parcel of land owned by the City. Annexation of this land is considered key for orderly development and implementation of the MASP. Of primary importance is the site planned to become the regional drainage facility for the approved subdivisions. The owners of this property intend to move forward with plans to subdivide the property shortly after annexation is completed, which will facilitate development of the drainage facility. The recommended resolution (Attachment 6) includes an exhibit of the zoning proposed for the annexation area, per the MASP. Other key features within this annexation area include the site for the future neighborhood park, the neighborhood-commercial center and major portions of the right-of-way for Prado Road. Airport Area The Airport Area Specific Plan (AASP) was approved in 2005. The City pursued an interim annexation policy until about 2001, allowing for annexation and development of individual properties along the Broad Street corridor. The result of this policy was development designed to be consistent with the AASWs Business Park designation, including the Thompkins Medical Center, which is approved for a range of office uses, and the Aerovista Business Park, located on the comer of Broad Street and Aerovista Drive. In total, 370 acres of land are now proposed for annexation in the Airport Area. i-may Margarita Area and Airport Area Annexation Page 5 o oo d i fl Current tv Limitsis T: reu 61 a W RR Annexation Boundary Une SAN o 0 m a Tank Faris Road O Proposed Airport ° Area Annexation Eastern Properties) O The graphic above depicts eleven properties proposed for annexation within the eastern portion of the Airport Area. Some of these properties are vacant, others are developed, but retain additional development potential. The zoning applied to land in the Airport Area is intended to reflect existing uses as close as possible to avoid creating a large number of non-conforming uses. Although there will be some non-conforming uses created, this should not be a significant concern to property owners and business owners because the City's Zoning Regulations permits non-conforming uses to remain indefinitely, unless the use is vacated for a period of six months. The City also allows one non-conforming use to replace another within this six-month time period as long as the new non-conforming use is determined to be compatible with the site and surroundings. The eastern portion of the annexation area also includes the Hidden Hills Mobile Home Park. The mobile home park represents the only residentially zoned land within the Airport Area. There are 32 residential units within the park. The City is already providing sewer service to this site, per the requirements of the Regional Water Quality Control Board. A meeting to provide residents of the park with information on annexation occurred on Wednesday, March 2151. The meeting was held at 6:30 PM in the PIC/EDD One-Stop Center, 4111 Broad Street, Suite A, and was open to the public. Staff will provide the Planning Commission with an update during the Commission's meeting on the 281h. o s L°Zcit meTt 4 Margarita Area and Airport Area Annexation Page 6 Current ON Limits u m o" Q U O Lj U j Tank Farm Road 0 00 J u Cco u ne 9 p Annexation Boundary Line o da 4 0• L ? Proposed Airport o m Area Annexation LWestem Properties) J Q . m O V A c a o Buckley Road P a a 0A.,o The land within the western portion of the Airport Area includes 50 parcels. Interim annexations have occurred in this area as well, including the Farm Supply site north of Tank Farm Road, the Spice Hunter property south of Tank Farm Road, and the Ernie Ball site south of Suburban Road. Existing businesses in this area now proposed for annexation include Air-Vol Block, Hanson Aggregate, and the Copeland's warehouse property on Suburban Road, the Dolezal office park and a large recreational vehicle storage yard along South Higuera Street, and the Whitson commercial service park and Union Properties/San Luis Ready Mix site on Tank Farm Road. The largest single property proposed for annexation in this area is the Avila Ranch site, which includes approximately 160 acres. This land is designated Business Park and the owners have expressed interest in annexation at this time so that they can begin to master plan a development proposal. Public Outreach In order to decide where to establish the annexation boundaries, the City has engaged the property owners within the annexation area to inform them about the City's long-term plans for development of the area. It is in the City's best interest to annex as large of an area as possible during the first phase of the annexation and the recommended boundaries have been established to provide for improved public safety, to allow for orderly development, and to facilitate implementation of the City's specific plans. The boundaries have also been established with respect to LAFCO requirements, which prevent islands of incorporated land and/or donut holes of unincorporated land within any annexation area. v?(t Attachment 4 Margarita Area and Airport Area Annexation Page 7 Attachment 4 includes three documents providing detailed information about annexation that were mailed out to property owners and residents within the annexation area over the past year. Response from property owners to these mailings has been almost entirely positive, however, some business owners have expressed concerns regarding the City's business tax, the utility users fee, and SLO Fire.Department inspection and permitting requirements. City staff has met with several individual property owners and business owners to answer questions and continues to address concerns on these issues in a pro-active manner. The Planning Commission should expect to hear public testimony regarding these costs during the meeting. In consideration of requests to modify the boundaries of the annexation area, the Planning Commission must consider the long-term goals of annexation (and LAFCO requirements) in addition to concerns that may be expressed by individual business or property owners. It is also relevant for the Planning Commission to consider that, upon annexation, the newly incorporated businesses will be subject to the same requirements as all other businesses within the City. Currently, businesses operating in the unincorporated commercial areas on the edge of the City benefit from City services, such as street maintenance, public transit, access to utilities and emergency services. Upon annexation, the services provided to these businesses will be greatly enhanced, and they will be asked to pay a fair share of the cost of services through City business tax, utility users tax and public safety programs at the same rates as all other businesses within the City. The LAFCO Process If the City Council approves the proposed annexation,then City staff will file an application with the Local Agency Formation Commission (LAFCO). LAFCO is a seven-member commission made up of representatives from the County Board of.Supervisors, cities within the County, special districts within the county, and a public member. LAFCO reviews proposals for boundary changes by cities and special districts pursuant to the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. The San Luis Obispo LAFCO has an independent staff that manages applications and makes recommendations to the commission. Once an application is made to LAFCO, their staff analyzes the application for completeness and adequacy, notifies property owners within the annexation area, and prepares a formal recommendation to the Commission regarding the proposed boundaries and the environmental review for the project. Ultimately, LAFCO must vote to approve or deny the application in a public hearing. Annexation Protests in an Inhabited Annexation Area The proposed annexation area is considered inhabited because it includes more than 12 registered voters. Therefore, both property owners and registered voters who live within the annexation area have the right to protest the annexation. According to State law (Government Code Section 57075-57090), property owners or registered voters who live within the annexation area may protest the annexation within 30 days of the LAFCO approval with the following thresholds established: Attachment 4 Margarita Area and Airport Area Annexation Page 8 Who Can Protest? Threshold Effect of Protest Property Owners At least 25%, but less than Protest results in a majority 50%, of property owners who vote of registered voters who also own 25% of the assessed live in the annexation area land value in the annexation area Property Owners More than 50% of property Annexation is terminated owners who also own 50% of the assessed land value in the annexation area Registered Voters At least 25%, but less than Protest results in a majority 50%, of registered voters who vote of registered voters who live in the-annexation area live in the annexation area Registered Voters More than 50% of registered Annexation is terminated voter who live in the annexation area If the protest period expires without sufficient protest to stop the annexation process, LAFCO will forward the boundary changes to the State of California to be enacted. Property owners and registered voters within the annexation area are not required to perform any actions for the annexation to take place. In other words, if LAFCO approves the annexation and there is no protest from registered voters or property owners, the annexation will take effect. Environmental Review In 2005, a Program EIR was certified for the Airport Area and Margarita Area Specific Plans and Related Facilities Master Plans (City Council Resolution No. 9726), addressing anticipated environmental effects associated with future development. A subsequent environmental document has been prepared with a focus on the specific impacts relative to annexation. Based on the findings included in the Initial Study, a Negative Declaration of Environmental Impact is recommended. The annexation.process itself results in no physical change to the environment. The completed Initial Study is attached (Attachment 5). The discussion under each issue area provides an overview of impacts associated with future development, as identified in the program EIR. Where the annexation action does not alter or change the previously identified potential effect or the associated mitigation measure, a finding of"no impact" is listed. Where the program EIR includes mitigation measures relative to future development, there is a reference provided to the mitigation measures and associated findings adopted in City Council Resolution No. 9726. References are also provided where Findings of Overriding Consideration were required as certain impacts associated with future development are considered significant and unavoidable. Attachment 4 Margarita Area and Airport Area Annexation Page 9 ALTERNATIVES 1. The Planning Commission can continue consideration of the proposed annexation if additional information is needed or if more time is needed to fully evaluate the proposal. This alternative is not recommended because annexation is consistent with the General Plan and the specific plans that have been created for the annexation areas. 2. The Planning Commission can recommend different boundaries to the City Council for annexation. This alternative is not recommended because leaving individual properties out of the larger annexation area will make it much more difficult to annex these properties in the future, which could have negative consequences relative to orderly development. Attachment 1: Propo on Boundary Map Attachment 2: AASP Pre-Zoning reviously adopted) Attachment 3: Annexation Plan for Services Attachment 4: Annexation information mailed out to prop d registered voters ttachment 5: Initial Study of Environmental Impact and Negative Dec Additional Background Information: Previous agenda reports and other additional information can be reviewed and downloaded from the following web page: http://www.slocity.org/communitydevelopment/annexation.asp 3iun_,arc ar?.s'LC y:"- v s:'"' y._r r.,,;... X:: "• y Ya%A/i.w f{.:iil.n'F.Wt3;;ll.i.W , ...... A.F .:.wi:..-t•rrr. •— w.v, t.;.... .. i..l'.l"?.'.1:'CY.$:.u:L Y At IiYY_S.'Z f.o'!k lY1' r' Attachment 5 o SQ,rI LUIsAirport Area and Margarita Area Annexation 0 Plan for Services - March 2007 18556 y. SBS- 2006 Q v ENT' Contents: 1. Law Enforcement 2. Fire Protection (Including Paramedic and Ambulance) 3. Parks and Recreation 4. Streets and Paths 5. Public Transit 6. Solid Waste and Recycling 7. Government Services, Development Review and Code Enforcement 8. Water and Wastewater 9. Storm Drainage 10.Affordable Housing 1. Law Enforcement The San Luis Obispo Police Department provides a variety of law enforcement and community services. Police services are based at 1042 Walnut at the intersection of Santa Rosa (Highway 1) and Highway 101. Full-time staff includes 85 employees; 58 are swom officers who perform law enforcement and management tasks. Currently, the Department also utilizes temporary employees equivalent to 2.7 full-time positions. The Department is divided into two police bureaus, with a captain commanding each. The Operations Bureau consists of the Patrol Services Division, Traffic Safety Unit, and Neighborhood Services Division. The Adminstrative Services Bureau consists of the Investigative Division, Situation Oriented Response Team, Communications Division, Records Unit and training function. According to the Safety Element of the City's General Plan, the Department has a 30% available-time objective for patrol officers. Available time is the portion of time that a patrol unit is not already on call or otherwise unavailable to respond to a new emergency call for service. The level of service in the annexed territory will be the same as in the rest of the city. The Airport Area Specific Plan and Margarita Specific Plan indicate that the proposed annexation will drive the need for additional personnel and equipment to maintain the current level of service and meet the available-time objective for patrol response. The 3 City of San Luis Obispo Airport Area/Margarita Area ArA biient 5 specific plans also indicate the potential need for a police substation/work area with urbanization of the area. Resources are allocated to the Police Department through the City's 2-year budget and financial plan process. Requests for additional resources are weighed against other potential uses of the City's general fund. The City expects that service demands and revenues both will increase upon annexation. Increased service demands will continue approximately in proportion to the amount of new development in the area at a gradual pace over several years. The level of service provided to the annexed territory will be the same as provided to the rest of the City. 2. Fire Protection (Including Paramedic and Ambulance) The City of San Luis Obispo Fire Department provides emergency and non-emergency fire protection services in the City. Emergency services include fire response, emergency medical response, hazardous materials response, and public assistance. Non-emergency services include fire and life safety inspections, building inspections, building plan checks, fire code investigations, arson investigations, and public education. Additionally, the SLOFD is a member of a countywide team that responds to hazardous materials incidents throughout the County. The Fire Department operates 4 fire stations and has a firefighter/population ratio of approximately 1 firefighter per 1,000 residents. Headquarters (Fire Station#1) is located on the corner of Broad Street and South Street, Fire Station #3 is located at 1280 Laurel Lane, and Fire Station #4 is located at the corner of Madonna and Los Osos Valley Road. The proximity of these stations to the Margarita Area and Airport Area provide for emergency response times of 4 minutes or less. The Fire Department's standard of coverage recommends that a three-person engine company, with paramedic, meet this standard 95 percent of the time. All SLOFD engine companies (first responders during an emergency call) include at least one paramedic. The Airport Area Specific Plan and Margarita Specific Plan indicate that the proposed annexation will drive the need for additional personnel, including firefighters and inspectors, to maintain the current level of service. Resources are allocated to the Fire Department through the City's 2-year budget and financial plan process. Requests for additional resources are weighed against other potential uses of the City's general fund. The City expects that service demands and revenues both will increase upon annexation. Increased service demands will continue approximately in proportion to the amount of new development in the area at a gradual pace over several years. The level of service provided to the annexed territory will be the same as provided to the rest of the City. Plan for Services- Page 2 City of San Luis Obis, Airport Area/A._.,garita Area.Annexation. 3. Parks and Recreation Attachment 5 The Parks and Recreation Element of the General Plan establishes a standard of 10 acres of parkland per 1,000 City residents. The Margarita Area meets this requirement by providing a 10-acre neighborhood park and 16 acres of improved sports fields. The Neighborhood Park will be created with development of the surrounding neighborhoods and will be dedicated to, and thereafter maintained by, the City. The Damon-Garcia Sports Fields were completed in 2005. The Airport Area does not include parkland because no residential neighborhoods are proposed in this part of the annexation area. The Airport Area Specific Plan does identify opportunities for active and passive recreation. A large portion of the plan area is designated as open space and the plan includes financing for an extensive bike path system. 4. Streets Maintenance and Development The proposed annexation boundaries have been created in consideration of the City's ability to maintain public infrastructure within the annexation area. The City's Pavement Management Plan was originally adopted in 1998 and provides the framework for the City's maintenance program. The heart of the program is computer software that analyzes the conditions of various street segments via special algorithms and then makes maintenance recommendations according to the available budget. The City has purchased MicroPaver, a program originally written by the Army Corps of Engineers to-maintain military bases. This program is made available to the public via the American Public Works Department and the University of Illinois. It is continually updated and maintained by the Corps and is in use throughout the United States and worldwide. Maintenance of existing streets within the annexed territory will be accomplished by incorporating the new right-of-way areas into the pavement management program. Within the annexation area, new development will be responsible for dedicating and improving right-of-way areas with streets, curb, gutter, sidewalk, street trees and necessary utilities infrastructure. After City acceptance of public improvements, new streets are incorporated into the pavement management program. The specific plans for the Airport Area and Margarita Area include a primary and secondary street network, which shows the arterial and collector streets needed to serve new development. Local streets are not shown in either specific plan and their location will be determined during the review of subdivision plans as they are submitted to the City. Plan for Services-Page 3 61OZ City of San Luis Obis,.._,Airport Area/k._,,garita Area Annexation - AVtachment 5 5. Public Transit The City currently provides transit service to the SLO County Regional Airport and the specific plans for the Airport Area and Margarita Area include significant expansion of transit in this area. As development occurs, the potential for new or expanded bus routes will be evaluated in accordance with the potential routes identified in the specific plans. New development is responsible for providing transit facilities, such as turnouts, shelters and in some cases, smart signs that indicate how soon the next bus will arrive. 6. Solid Waste and Recycling The City of San Luis Obispo contracts with San Luis Garbage Company for garbage, green waste and recycling services. San Luis Garbage disposes of solid waste at the Cold Canyon Landfill, which is a regional facility. San Luis Garbage also serves commercial and residential properties within the City's urban reserve and no change in service is expected for annexed properties. The City also runs a construction and demolition debris recycling program (Municipal Code Chapter 8.05). The goal of the program is to divert the bulk of the materials generated from projects within the City of San Luis Obispo from the landfill and thus, extend the landfill's lifespan. Construction and demolition debris materials represent a significant percentage of the City's solid waste stream, with current estimates at 25 percent of the total tonnage. The program helps the City meet State-mandated requirements for solid waste reduction. 7. Municival Services, Development Review and Code Enforcement The City of San Luis Obispo will provide for municipal services within the annexed territory such as elections, public notices, development review, building permits and. inspections, subdivision review, permitting and inspecting public improvements, and code enforcement. San Luis Obispo City government will provide for development review of all new development projects in accordance with the approved specific plans, and will coordinate with the County of San Luis Obispo with respect to on-going construction projects and active construction permits. Code enforcement activities in the annexed territory will be provided by a full-time staff member in the Community Development Department, in coordination with the Police Department and the City Attorney's Office. Government services are based at City Hall, 990 Palm Street, San Luis Obispo. 8. Water and Wastewater As part of the Airport Area and Margarita Area Specific Plans, the City prepared related facilities master plans, including a Wastewater Master Plan Update, a Water System Master Plan, and a Storm Drain Master Plan. These plans insure the feasibility of providing urban services to the annexation area and guide the placement and expansion of the infrastructure needed to serve the area. Projects anticipated under the master plans include a new wastewater lift station on Tank Farm Road, an upgrade to the existing lift station on Calle Joaquin (Howard Johnson lift station), capacity upgrades at the Water Plan for Services-Page 4 x '33 City of San Luis Obis,_ ,Airport.Arew%._,,garita Area Annexati3chf1lent 5 Reclamation Facility, new backbone facilities for the water treatment and distribution systems, and three new bridges in the annexation area to insure that natural channels can accommodate storm flows. Water Supply The City of San Luis Obispo currently utilizes three sources of water supply to meet the community's water demand: Santa Margarita Lake (also referred to as Salinas Reservoir), Whale Rock Reservoir, and groundwater. The adopted safe annual yield from these three sources for 2006 is 7,480 acre feet (af) which takes into account annual estimated reductions due to siltation at the reservoirs. In addition to these existing water supplies, the City will add an additional 130 of of water from the Water Reuse Project and 120 of from the expanded water conservation program this year. This will increase the City's safe annual yield to 7,730 of for 2006. The actual total city-wide water use for 2005 was 6,098 of which was about 2.3% lower than last year's use of 6,239 af. For planning purposes, the City calculates present water demand at 145 gallons per capita per day (gpcd), which is equal to 7,218 acre feet on an annual basis. These means that there is 512 a.f. available for new development. The policies in the Water Management Element WME)of the General Plan determine how available water is allocated to new development. Per WME Policy 8.1.3, one-half of the water available for allocation will be reserved to serve intensification and infill development within city limits existing as of July 1994. Therefore, in 2006, 256 acre feet is available to serve new annexation areas and 256 acre feet is reserved for infill and intensification projects. The City's long term water supply requirements are summarized in the table below: Primary Supply Requirements(acre feet) Safe Annual Yield Required at Build-out 9,096 Current Safe Annual Yield(2006) 7,730 Additional Safe Annual Yield Required 1,366 Siltation (2007 to 2025) 190 Total Water Supply Requirement 1,556 Based on the General Plan build-out population of 56,000 and the per capita water use rate of 145 gpcd, the projected demand at full build-out is 9,096 acre feet per year (afy). The City is currently pursuing or considering the several supplemental water supply projects to meet the total supply requirement. The Water Reuse Project, the Nacimiento Pipeline Project, and increased water conservation strategies constitute the "top tier" strategy for developing additional water supplies. Other water supply projects include developing additional groundwater resources, a potential desalination facility, and the Salinas Reservoir Expansion Project. Plan for Services-Page 5 1-3V7 r%uauI III iGI IL City of San Luis Obisi._Airport Area/L._.garita Area Annexation Recycled Water In 2006, the City's Water Reuse Project began delivering recycled water to several parks, sports fields, and other landscaped areas. Initially, approximately 130 acre-feet per year of recycled water will be used, offsetting potable water use for irrigation and malting more water available for new development. The Water Reclamation Facility produces enough recycled water so that approximately 1,000 acre-feet per year could be delivered for irrigation in the future. The additional water will be used to irrigate new developments within the City as well as appropriate existing irrigation sites. Recycled water will provide a reliable long-term source of water for the City. Since drought conditions have very little impact on this source of supply,a dependable water supply can be delivered to the parks, playgrounds and similar landscape areas served by the project even during drought periods. Nacimiento Pipeline On June 29, 2004, the Council approved amendments to the General Plan Water and Wastewater Element, the Final Environmental Impact Report for the Nacimiento Project, and execution of the agreement with the County for 3,380 afy of water from the Project. The project is currently in the design phase and various consultants have been hired to provide specific services such as surveying, geotechnical, right-of-way acquisition, and preparation of plans and specifications. The current project schedule anticipates completing design and obtaining necessary permits by late spring, early summer 2007 and construction beginning in October of 2007. Current project schedules estimate project completion and initial water deliveries by end of 2010. Additional Water Conservation Programs The Water Conservation Program is an integral part of the City's overall water management strategy and can actually be considered as a new source of supply contributing to our safe annual yield based on the water saved. Since the mid 1980's, the City has implemented water efficiency programs and policies that have enabled the City to decrease overall demand while the population continues to grow. In 1991, the City became one of the charter members of the California Urban Water Conservation Council and has implemented the organization's fourteen "Best Management Practices" (BMP's) regarding urban water conservation. The Memorandum of Understanding acts as a road map for the City's long-term water conservation program and signifies a commitment to the implementation of the BMP's. As part of the 2003-2005 Financial Plan, Council approved funding necessary to expand the water conservation program to include a more aggressive water conservation program which would have an irrigation efficiency component and a broadened commercial conservation program. The table below summarizes the estimated water savings that the expanded programs have achieved on an ongoing basis as of this year. These water savings are above the savings that have been achieved prior to 2003 through toilet retrofitting, public education, and other past water conservation programs. As indicated Plan for Services- Page 6 A'tachment 5 City of San Luis Obis,' Airport Area/h._.garita Area Annexation in the table, the irrigation efficiency component of the program has produced the largest water savings and therefore is the primary focus of the expanded program. The goal for the first year of the landscape portion of the program was a savings of about 90 acre feet of water. Conservation staff has developed a monitoring program that conservatively estimates the water savings to be 100 acre feet per year as of 2006. Savings from Expanded Conservation Program Goal for 1s`Year Actual Saving(af)Savin (af) Landscape/Irrigation 90 100 Non-residential 20 to 25 20 Total 110 to 115 120 Wastewater Collection The City's Wastewater Master Plan Update (Brown and Caldwell, 2000) identifies the necessary infrastructure and provides for a fee program to support build-out of the specific plan areas. The three most significant projects anticipated in the Master Plan include a brand new lift station on Tank Farm Road, a replaced lift station on Calle Joaquin (Howard Johnson Lift Station) and capacity upgrades at the Water Reclamation Facility. The airport area is divided into two catchment areas. The southwest portion of the area will flow to the existing Howard Johnson Lift Station, while the southeast portion will flow to the new Tank Farm Lift Station. The Tank Farm Lift Station is expected to come online during the spring of 2008. Until this facility comes online, the City will not allow existing or new development in the southeast portion of the annexation area to connect to sewer service. Additional capacity is available to allow new and existing development to connect to City sewer service in the southwest portion of the annexation area. Existing unincorporated development along Tank Farm Road, Suburban Road and South Higuera will be able to connect to sewer service when their existing septic systems fail or sooner if they elect to. There is an existing 8" sewer main in Suburban Road with gravity flow to the Howard Johnson Lift Station. Development in the Margarita Area will be required to extend sewer infrastructure into the area, which will flow by gravity to the Water Reclamation Facility. 9. Storm Drainai?e On-site flooding and the potential for increased downstream flooding have restricted development potential in the proposed annexation area. When considering how to address storm drainage in the area, a number of objectives are identified in the Airport Area Specific Plan and Margarita Area Specific Plan. These include: Plan for Services- Page 7 Attachment 5 City of San Luis Obist-_Airport Area/h._.garita Area Annexation Use the City's Drainage Design Manual and Waterways Management Plan as the basis for all detention requirements in the Specific Plan area. Provide a method for flood protection consistent with the City's Flood Damage Prevention Regulations. Maximize the opportunity for environmental enhancement of stream corridors and stormwater detention and conveyance facilities. Minimize capital expenditures. Provide opportunities for multiple-use of storm drainage facilities. Initially, an area-wide drainage solution was envisioned for the Airport Area. This solution was referred to as the Storm Drain Master Plan and relied on significant creek channel modifications to keep storm flows within existing creek channels, modified natural channels, and in man-made by-pass channels. A regional detention basin south of Buckley Road was proposed to detain water and prevent downstream flooding. After this solution was developed, the City's Waterways Management Plan was approved, which includes a Drainage Design Manual with standards for on-site storm water detention. Once it became evident that the costs of the original Storm Drain Master Plan were prohibitive, the Storm Drain Master Plan was revised to allow for on-site detention of storm flows, consistent with the Drainage Design Manual. The following proposed improvements and development requirements comprise the revised Storm Drain Master Plan for the Airport Area, and also improve the upstream situation in the Margarita Area : 1. Remove and replace existing Acacia Creek Bridge at Tank Farm Road with a standard Caltrans 2-span concrete slab bridge. 2. Remove and replace existing East Branch San Luis Obispo Creek Bridge at Santa Fe Road with a standard Caltrans 2-span concrete slab bridge. 3. Remove and replace the existing Tank Farm Creek culvert facilities at Tank Farm Road with a standard Caltrans 2-span concrete slab bridge. 4. Apply the requirements of the City's Flood Damage Prevention Guidelines to proposed development within the Airport Area. 5. Apply the requirements of the City's Waterways Management Plan, Drainage Design Manual to proposed development within the Airport Area. These proposed improvements, along with implementation of existing City-wide ordinances and requirements are expected to provide 100-year flood protection and provide for environmental enhancement of stream corridors. The analytical methods outlined in the Waterway Management Plan, Drainage Design Manual will be used to assist in the future design of flood control improvements. Plan for Services- Page a Attachment 5 City of San Luis Obi ' .Airport Area&_,garita Area Annexation 10.Affordable Housin:r New housing projects in the annexation area are planned principally in the Margarita Area and are subject to the City's Inclusionary Housing Requirement. The City's ordinance requires 15% of all new dwelling units in the expansion area to be guaranteed as affordable under one of the City's two affordability programs, long-term affordability or equity sharing. The Housing Element also provides for a reduction of the total number of units required if projects are designed to be high density, with small floor plans, in essence providing for affordability by design. In addition to the affordable housing requirement for residential projects, new commercial projects that include over 2,500 square feet of floor area must provide affordable housing or pay in-lieu fees. The requirement is 2 affordable dwelling units per acre of land, or pay an in-lieu fee equal to 5% of the total cost to construct a project. The City uses the fees collected to support the Housing Authority and for specific affordable housing projects that meet eligibility criteria as specified by Council resolution. Plan for Services- Page 9 Attachment 6 cityMoGiosanluesoBisop INITIAL STUDY ENVIRONMENTAL CHECKLIST FORM For ER#172-05 1. Project Title: Airport Area and Margarita Area Annexation Phase 1 2. Lead Agency Name and Address: City of San Luis Obispo 990 Palm Street SLO, CA 93401 3. Contact Person and Phone Number: Michael Codron, Associate Planner, 781-7175 4. Project Location: Southern San Luis Obispo (see Attachment 1) 5. Project Sponsor's Name and Address: City of San Luis Obispo 990 Palm Street SLO, CA 93401 6. General Plan Designation: City Expansion Areas 7. Zoning: Margarita Area Specific Plan/Airport Area Specific Plan (see Attachments 2 and 3) 8. Description of the Project: Annexation and pre-zoning of approximately 617 acres of land in the Margarita Area and Airport Area. 9. Surrounding Land Uses and Settings: The Airport Area includes a total of 1,500 acres located on the floor of the Los Osos Valley, within the San Luis Creek alluvial plane. 367 acres of land are currently proposed for annexation. The area has level topography that slopes gradually to the southwest. The Margarita Area is located to the north; the Broad Street corridor and the Edna-Islay residential area are located to the east; open space and agricultural land between the urban area and the Davenport Hills are located to the south; and the South Higuera/Highway 101 corridor is located to the west. Major features of the Airport Area include the SLO County Regional Airport, the former tank farm owned by Chevron Corporation, agricultural land along Buckley Road and Tank Farm Road and commercial/industrial development along arterial and collector streets such as Broad Street,Tank Farm Road, Suburban Road, Vachell Lane and Buckley Road. Margarita Area: The Margarita Area includes a total of 416 acres and 250 acres are now proposed for annexation. It includes much of the land bounded by South Higuera Street, Broad Street, the Airport Area's northern boundary, and the ridge of the South Street Hills. The Margarita Area is located within the City's urban reserve boundary. Major features include the Cnv OF SAN LUIS OBISPO 1 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006 39 Attachment 6 Damon-Garcia Sports Fields Complex, the South Street Hills, and the Garcia Ranch complex. Prado Road and Margarita Avenue currently terminate at the edge of the Margarita Area on the western side and Industrial Way terminates at the eastern edge of theannexationarea. 10. Project Entitlements Requested: Pre-Zoning and Annexation 11. Other public agencies whose approval is required: San Luis Obispo County Local Agency Formation Commission CITY OF SAN LUIS OBISPO 2 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006I Attachment 6 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a"Potentially Significant Impact" as indicated by the checklist on the following pages. Aesthetics Geology/Soils Public Services Agricultural Resources Hazards&Hazardous Recreation Materials Air Quality Hydrology/Water Quality Transportation&Traffic Biological Resources Land Use and Planning Utilities and Service Systems Cultural Resources Noise Mandatory Findings of Significance Energy and Mineral Population and Housing Resources FISH AND GAME FEES There is no evidence before the Department that the project will have any potential adverse effects on fish X and wildlife resources or the habitat upon which the wildlife depends. As such, the project qualifies for a de minimi c waiver with regards to the filing of Fish and Game Fees. The project has potential to impact fish and wildlife resources and shall be subject to the payment of Fish and Game fees pursuant to Section 711.4 of the California Fish and Game Code. This initial study has been circulated to the California Department of Fish and Game for review and comment. STATE CLEARINGHOUSE This environmental document must be submitted to the State Clearinghouse for review by one or more State agencies (e.g. Cal Trans, California Department of Fish and Game, Department of Housing and Community Development). The public review period shall not be less than 30 days (CEQA Guidelines 15073(a)). 7amCRYOFSANLuisOBISPO3INRIALSTUDYENVIRONMENTALCHECIOJST2006 Attachment 6 DETERMINATION: This environmental document is focused on the specific impacts relative to annexation, and a Negative Declaration of Environmental Impact is recommended. The annexation process itself results in no physical change to the environment. In 2005, a Program EIR was certified for the Airport Area and Margarita Area Specific Plans and Related Facilities Master Plans (City Council Resolution No. 9726), addressing anticipated environmental effects associated with future development. The discussion under each issue area provides an overview of impacts associated with future development in the annexation area that are identified in the program EIR. Where the annexation action does not alter or change the previously identified potential effect or the associated mitigation measure, a finding of "no impact" is listed. Where the program EIR includes mitigation measures relative to future development, there is a reference provided to the mitigation measures and associated findings adopted in City Council Resolution No. 9726 Attachment 4). References are also provided where Findings of Overriding Consideration were required because certain impacts associated with future development are considered significant and unavoidable. On the basis of this initial evaluation: I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made, or the mitigation measures described on an attached sheet(s) have been added and agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a "potentially significant" impact(s) or "potentially significant unless mitigated' impact(s) on the environment, but at least one effect (1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and (2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed I find that although the proposed project could have a significant effect on the environment,because all potentially significant effects (1) have been analyzed adequately in an earlier EIR or NEGATIVE X DECLARATION pursuant to applicable standards, and (2)have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. him f, m4AZ& MA J 2on-L Signature Date Printed Name For:John Mandeville, Community Development.Director CITY OF SAN LUIS OBISPO 4 INITIAL.STUDY ENVIRONMENTAL CHECKLIST 2006 Attachment 6 EVALUATION OF ENVIRONMENTAL IMPACTS: 1.A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the analysis in each section. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one . involved (e.g.the project falls outside a fault rupture zone). A"No Impact"answer should be explained where it is based on project-specific factors as well as general standards (e.g. the project will not expose sensitive receptors to pollutants,based on a project-specific screening analysis). 2.All answers must take account of the whole action involved,including off-site as well as on-site,cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. The explanation of each issue should identify the significance criteria or threshold,if any,used to evaluate each question. 3.Potentially Significant Impact'is appropriate if there is substantial evidence that an effect is significant. If there are one or more"Potentially Significant Impact"entries when the determination is made,an EIR is required. 4.Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from"Potentially Significant Impact" to a "Less than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level mitigation measures from Section 17,"Earlier Analysis,"may be cross-referenced). 5.Earlier analysis may be used where,pursuant to the tiering,program EIR,or other CEQA process,an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063 (c) (3) (D) of the California Code of Regulations. Earlier analyses are discussed in Section 17 at the end of the checklist. 6. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g. general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate,include a reference to the page or pages where the statement is substantiated. 7.Supporting Information Sources: A source list should be attached,and other sources used or individuals contacted should be cited in the discussion. In this case,a brief discussion should identify the following: A. Earlier Analysis Used. Identify and state where they are available for review. B. Impacts Adequately Addressed. Identify which effects from theabove checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards,and state whether such effects were addressed by mitigation measures based on earlier analysis. C. Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. CITY OF SAN LUIS OBISPO INfl'IAL STUDY ENVIRONMENTAL CHECKLIST 200066 A"Chment 6 Issues, Discussion and Supporting information Sources Sources Potenuatly Potentially L=s Ihw No Significant Significant Significant Impact IssER#172-05 Margarita/Airport Area Annexation G5 Unless impact Mitigation Incorporated 1.AESTHETICS. Would theproject: a) Have a substantial adverse effect on a scenic vista? 1,2 X b) Substantially damage scenic resources,including,but not limited to,trees,rock outcroppings,open space,and historic buildings X within a local or state scenic highway? c) Substantially degrade the existing visual character or quality of X the site and its surroundings? d) Create a new source of substantial light or glare which would X adversely affect day or nighttime views in the area? Evaluation The proposed project will result in the change of character of the plan areas from a generally semi-rural setting to an urban developed setting. This impact was evaluated in 1994 Land Use/Circulation Element EIR and in the Final Program Environmental Impact Report for the Airport Area and the Margarita Area Specific Plans and Related Facilities Master Plans. While substantial design standards are contained in the Airport Area Specific Plan, Margarita Area Specific Plan, the Community Design Guidelines and the City's General Plan, the change in views was determined to be a significant and unavoidable impact. Conclusion No feasible mitigation exists to eliminate the impact associated with the conversion of a semi-rural landscape to an urban landscape. A Statement of Overriding Considerations was adopted by the City Council in Resolution No. 9726(Attachment 4). All impacts associated with land use and aesthetics and related findings can be found beginning on Page 7 of Exhibit A to the attached resolution. The Statement of Overriding Considerations begins on Page 44 of Exhibit A to the attached resolution. The annexation of the Airport Area and Margarita Area is a project proposed under the Final Program EIR for the MASP, AASP and Related Facilities Master Plans. Annexation of land within the specific plan areas does not involve additional impis relative to aesthetics. 2.AGRICULTURE RESOURCES. Would theproject: a) Convert Prime Farmland,Unique Farmland,or Farmland of Statewide Importance(Farmland),as shown on the maps 2,3 X pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency,to non-agricultural use? b) Conflict with existing zoning for agricultural use or a X Williamson Act contract? c) Involve other changes in the existing environment which,due to their location or nature,could result in conversion of Farmland X to non-agricultural use? Evaluation The 1994 Land Use Element/Circulation Element Updates EIR addressed the fact that annexation and development of the area in accordance with the City General Plan designations would result in the loss of agricultural resources. That loss was identified as a significant and unavoidable impact. Policies were incorporated into the Land Use Element to help compensate for productivity lost as a result of the conversion of agricultural lands with the urban reserve. Specifically, City policy requires direct dedication of open space land,or payment of on in-lieu fee,as a condition of annexation and development. The primary target of this exaction is to protect open space and agricultural lands outside,but contiguous to,the City's URL. The concept is to create a permanent open space buffer/greenbelt around the city that prevents continued expansion of the urban area onto valuable agricultural resources. CRY OF SAN Luis OBISPO 6 INITIAL STUDY ENVIRONMENTAL CHFcKusr 2006_ 911111, 21 Attachment 5 Issues, Discussion and Supporting Information Sources sources Poen y Potentially cess Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues Unless Impact Mitigation Incorporated Conclusion The loss of prime agricultural soils to urban uses is irreversible and cannot be mitigated. The Final Program EIR for the MASP, AASP and Related Facilities Master Plans requires dedication of land, or in-lieu fees, to preserve open space and agricultural land within the specific plan areas and outside the URL. 44.8% of the land within the Margarita Area is open space consisting of bills,greenspace and creek corridors. 23%of the land within the Airport Area is designated as open space and dedication of open space land,or payment of an in-lieu fee,is required in conjunction with all proposed development. A Statement of Overriding Considerations was adopted by the City Council in Resolution No. 9726 (Attachment 4). All impacts associated with land use and aesthetics(including agricultural resources)and related findings can be found starting on Page 7 of Exhibit A to the attached resolution. The Statement of Overriding Considerations begins on Page 44 of Exhibit A to the attached resolution. Annexation of land within the specific plan area does not create additional impacts relative to agricultural resources and no additional mitigation measures are required. 3. AIR QUALITY. Would theproject: a) Conflict with or obstruct implementation of the applicable air X quality plan?2,4 b) Violate any air quality standard or contribute substantially to an X existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard X including releasing emissions which exceed qualitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant X concentrations? e) Create objectionable odors affecting a substantial number of X people? Evaluation The Final Program EIR for the MASP, AASP and Related Facilities Master Plans identified both short-term air quality impacts related to construction emissions and long-term, operational air quality impacts associated with development under the specific plan. These impacts were considered to be less than significant with mitigation measures incorporated. These mitigation measures include specific measures for controlling combustion emissions from construction vehicles,measures to reduce fugitive dust from construction sites, construction-related management techniques, and a requirement for proposed projects to be evaluated in a manner consistent with the APCD's Clean Air Plan(CAP). Conclusion Air quality impacts associated with development of the specific plan areas is considered less than significant with mitigation measures incorporated. All impacts and findings associated with air quality can be found beginning on Page 25 of Exhibit A to the attached resolution. The proposed annexation will not result in any additional air quality impacts because this aspect of specific plan implementation does not involve physical development or construction of other facilities. 4. BIOLOGICAL RESOURCES. Would theproject: a) Have a substantial adverse effect,either directly or through X habitat modifications,on any species identified as a candidate, sensitive,or special status species in local or regional plans, 1,2 policies,or regulations,or by the California Department of Fish and Game or U.S.Fish and Wildlife Service? CITY OF SAN LUIS OBISPO 7 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006 AI'ta&mP.rt 6 Issues, Discussion and Supporting information Sources sources PotmtaDy Potentially Less Than No sigaificant significant Significant impact Issues impactER#172-05 Margarita/Airport Area Annexation IIn Mitigation Incorporated b) Have a substantial adverse effect,on any riparian habitat or X other sensitive natural community identified in local or regional plans,policies,or regulations,or by the California Department of Fish and Game or U.S.Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands X as defined in Section 404 of the Clean Water Act(including,but not limited to,marsh,vernal pool,coastal,etc.)through direct removal,filling,hydrological interruption,or other means? d) Interfere substantially with the movement of any native resident X or migratory fish or wildlife species or with established native resident or migratory wildlife corridors,or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting X biological resources,such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted habitat Conservation X Plan,Natural Community Conservation Plan,or other approved local,regional,or state habitat conservationplan? Evaluation The Final Program EIR for the MASP,AASP and Related Facilities Master Plans identifies a total of 19 impacts to biological resources associated with build-out of the annexation areas. Some of these impacts include loss or temporary disturbance of annual grasslands, wetland habitat, and riparian woodland or scrub. Impacts are also identified to special status plant and animal species, including Congdan's Tarplant, vernal pool fairy shrimp, red-legged frogs, southwestern pond turtles and loggerhead shrikes,among other species. Mitigation measures identified in the EIR are incorporated into the Margarita Area Specific Plan and the Airport Area Specific Plan as policies and programs, or more specific requirements for avoidance of impacts on special status plant and animal species. For instance,the largest area of valley needlegrass grassland located in the Airport Area is designated as open space land to protect this biological resource from impacts associated with development Conclusion According to the Final Program EIR for the MASP, AASP and Related Facilities Master Plans, all impacts related to biological resources can be mitigated to less than significant levels. All impacts and findings associated with biological resources can be found beginning on Page I1 of Exhibit A to the attached resolution. The proposed annexation proposal involves no direct impacts on biological resources in the annexation area and no additional mitigation is required. 5.CULTURAL RESOURCES. Would theproject: a) Cause a substantial adverse change in the significance of a 2,5 X historic resource as defined in CEQA Guidelines§15064.5. b) Cause a substantial adverse change in the significance of an X archaeological resource pursuant to CEQA Guidelines 15064.5) c) Directly or indirectly destroy a unique paleontological resource X or site or unique geologic feature? d) Disturb any human remains,including those interred outside of X formal cemeteries? Evaluation As discussed in the Final Program EIR for the MASP, AASP and Related Facilities Master Plans, ground disturbance associated with infrastructure development and construction of new access roads, underground utilities and buildings could yCO CITY OF SAN LUIS OBISPO 8 INITIAL STUDY ENVIRONMENTAL CHEcKusT 2006 Issues, Discussion and Supporting Information Sources Sources Poc®trauy Potentially Less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues tigats Impact Mitigytion Incorporated have an impact on known and unknown cultural resources. No specific resources are identified and discussed in the EIR. Conclusion The Final Program EIR for the MASP, AASP and Related Facilities Master Plans identifies impacts associated with development under the specific plans as less-than-significant with implementation of the required mitigation measure. All impacts associated with cultural resources and related findings can be found beginning on Page 34 of Exhibit A to the attached resolution. The proposed annexation does not involve ground disturbance or any other activity that would create a direct impact to cultural resources and,therefore,no additional mitigation is required. 6. GEOLOGY AND SOIIIS. Would theproject: a) Expose people or structures to potential substantial adverse 2,6 X effects,including risk of loss,injury or death involving: I. Rupture of a known earthquake fault,as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other X substantial evidence of a known fault?Refer to Division of Mines and Geology Special Publication 42. H. Strong seismic ground shaking? X III. Seismic-related ground failure,including liquefaction? X IV. Landslides? X b) Result in substantial soil erosion or the loss of topsoil? X c) Be located on a geologic unit or soil that is unstable,or that would become unstable as a result of the project,and potentially X result in on or off site landslide,lateral spreading,subsidence, liquefaction or collapse? d) Be located on expansive soil,as defined in Table 18-1-B of the Uniform Building Code(1994),creating substantial risks to life X or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers X are not available for the disposal of waste water? Evaluation The City of San Luis Obispo is in Seismic Zone 4,a seismically active region of California and strong ground shaking should be expected at any time during the life of proposed structures. Structures must be designed in compliance with seismic design criteria established in the Uniform Building Code. Since this is a code requirement that is monitored through the review of plans during the Building Division's plan check process,no further mitigation is necessary. Most of the annexation area lies in an area identified by the Safety Element of the General Plan as being in an area of High Liquefaction Potential. As defined in the Safety Element,liquefaction is"the sudden loss of the soil's supporting strength due to groundwater filling and lubricating the spaces between soil particles as a result of ground shaking." In extreme cases of liquefaction, structures can tilt,break apart,or sink into the ground. The likelihood of liquefaction increases with the strength and duration of an earthquake. The risk of settlement for new construction can be reduced to an acceptable level through careful site preparation and proper foundation design. Recommendations for proper site preparation and foundation design are included in project soils reports and soils engineering reports. These documents are required by code to be submitted to the Building Division as part of the construction permit process,therefore,no further mitigation is necessary. CnY OF SAN Luis OBiSPo 9 INmAL STuoy ENVIRONMENTAL CHECKLIST 2006 AttachmPnt 6 Issues, Discussion and Supporting Information Sources Sources itia-y Potentially Less Than 'No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues Unless Impact Mitigation Jar porated Conclusion Development proposed within the Airport Area and Margarita Area will be subject to requirements to prepare soils reports and soils engineering reports with recommendations regarding suitability of particular development sites for construction and recommended construction methods. The proposed annexation does not involve construction of any new facilities. Therefore,no impacts relative to geology and soils have been identified. 7. HAZARDS AND HAZARDOUS MATERIALS. Would the Pri 'ect: a) Create a significant hazard to the public or the environment 2,6 through the routine use,transport or disposal of hazardous X materials? b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions X involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials,substances,or waste within one-quarter X mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section X 65962.5 and,as a result,would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or,where such a plan has not been adopted,within two miles of a public X airport or public use airport,would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip,would the project result in a safety hazard for people residing or working X in the project area? g) Impair implementation of or physically interfere with an adopted X emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of lose,injury, or death involving wildland fires,including where wildlands are X adjacent to urbanized areas or where residences are intermixed with wildlands? Evaluation The Final Program EIR for the MASP, AASP and Related Facilities Master Plans identifies three impacts associated with development in the annexation areas. These include potential construction related exposure of people to hazardous materials, potential operations-related exposure of people to hazardous materials and short-term surface water quality degradation from accidental release of hazardous materials during construction. Operations-related exposure includes exposure from accidental releases associated with businesses that are involved with the delivery, use, manufacture and storage of various chemicals. These operations are permitted by the City's Fire Department, which monitors the use of chemicals within the City under specific conditions of permit approval. The most obvious source of potential exposure to hazardous materials during construction is related to the former Tank Farm, which is now owned by the Chevron Corporation. The former owner, Unocal, began operations on the site in 1910 and continued up until 1997. Crude oil released into the soil between 1910 and the early 1980's has impacted soil and ground water beneath the site. A Erre in 1926 released additional oil that accounts for most of the contamination found at the site. Computer simulations and more than 10 years of ground water monitoring have demonstrated that the subsurface crude oil CITY OF SAN Luis OBISPO 10 INMAL STUDY ENVIRONMENTAL CHECKLIST 2006 Attach rrent 6 Issues, Discussion and Supporting information Sources sources Potentia y Potentially Less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues unless Impact Mitigation Incotporated plume has achieved equilibrium and is incapable of further lateral migration. A human risk assessment has also concluded that no unacceptable levels of risk are associated with the site under current conditions. Most of the former tank farm area is designated as open space. These areas are not proposed for annexation at this time. Conclusion According to the Final Program EIR for the MASP,AASP and Related Facilities Master Plans impacts associated with build- out of the specific plan relative to hazardous materials are considered less than significant with the required mitigation measures incorporated. These mitigation measures include requirements for site specific management plans and Fire Department oversight,including inspections,of the use of hazardous materials during operations. All impacts associated with hazards and hazardous materials and related findings can be found beginning on Page 30 of Exhibit A to the attached resolution. Annexation of land within the Airport Area and Margarita Area does not involve any direct impacts related to hazards or hazardous materials. No further mitigation measures are required. HYDROLOGY AND WATER QUALITY. Would theproject: a) Violate any water quality standards or waste discharge 2,7,8 X requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level(e.g.the production rate of pre-existing X nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or X river,in a manner which would result in substantial erosion or siltation on or off site? d) Substantially alter the existing drainage pattern of the site or area,including through the alteration of the course of a stream or X river,or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on or off site? e) Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or X provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality?X g) Place housing within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map 2,7,8 X or other flood hazard delineation map? h) Place within a 100-year flood hazard area structures which X would impede or redirect flood flows? i) Expose people or structures to significant risk of loss,injury or death involving flooding,including flooding as a result of the X failure of a levee or dam? Inundation by seiche,tsunami,or mudflow? X Evaluation According to the Final Program EIR for the MASP, AASP and Related Facilities Master Plans development under the specific plans would cause changes to absorption rates,drainage patterns and the amount of run-off. Development would also increase discharges of surface water pollutants and expose people and property to flooding hazards. CrrY OF SAN Luis OBISPO 11 INmAL STUDY ENVIRONMENTAL CHECKLIST 2006 Attach,me l Issues, Discussion and Supporting information Sources sources Potmtt—Y I Potentially Less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation slues unless Impact Mitigation Incorporated All new development in the annexation areas will be requited to comply with the requirements of the Waterways Management Plan. Compliance with the Waterways Management Plan, which includes Flood Damage Prevention Guidelines, insures that development will not have significant environmental effects with respect to drainage and water quality. Conclusion The Final Program EIR for the MASP, AASP and Related Facilities Master Plans assesses hydrology and water quality impacts relative to development in the annexation area. Impacts are mitigated through compliance with the City's Waterway Management Plan. All impacts and findings associated with hydrology and drainage can be found beginning on Page 10 of Exhibit A to the attached resolution. Annexation will not create any direct impacts relative to hydrology and water quality, therefore,no additional mitigation is required. 9. LAND USE AND PLANNING. Would theproject: a) Physically divide an established community? 2 X b) Conflict with any applicable land use plan,policy,or regulation of an agency with jurisdiction over the project adopted including, but not limited to the general plan, specific plan, X local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural X community conservationplan? Evaluation The Final Program EIR for the MASP,AASP and Related Facilities Master Plans identified impacts to land use and planning because of an inconsistency between City and County land use designations. The Avila Ranch site and other properties located outside of the City's 1994 Urban Reserve Line were designated open space by the City, but designated for urban development by the County General Plan. The final project description(Alternative 3 in the EIR) matched the City's urban reserve line and the County's urban services line so that there is currently no land designated for urban development in the county that is outside of the City's planned service area. The City is expected to be the only urban service provider in the annexation area and uses remaining in the County are limited to suburban residential and agricultural uses. Relocation of the Urban Reserve Line,which occurred when the AASP was adopted,was considered a significant and unavoidable impact. Conclusion A Statement of Overriding Considerations was adopted by the City Council in Resolution No. 9726 (Attachment 4).. All impacts associated with land use and planning and related findings can be found starting on Page 7 of Exhibit A to the attached resolution. The Statement of Overriding Considerations begins on Page 44 of Exhibit A to the attached resolution. Annexation of portions of the Airport Area and Margarita Area will have no impacts on land use and planning issues because the AASP,MASP and Related Facilities Master Plans have been approved to guide development of these areas. 10. MEgMAL RESOURCES. Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the X state? b) Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan, X specific plan or other land use plan? Evaluation There are no known or locally-important mineral resources within the annexation area that would be lost due to the proposed annexation. i Cm OF SAN Luis OBISPO 12 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006 AftachmPnt 6 Issues, Discussion and Supporting information Sources Sources Potentiauy Potentially Less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues Unless Impact Mitigation Incorporated Conclusion No significant impacts associated with mineral resources were identified in the program EIR for the proposed project. 11.NOISE. Would the ro'ect result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise 2,9,10 X ordinance,or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundborne X vibration or groundborne noise levels? c) A substantial permanent increase in ambient noise levels in the X project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the X project? e) For a project located within an airport land use plan,or where such a plan has not been adopted,within two miles of a public X airport or public use airport,would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip,would the project expose people residing or working in the project area to X excessive noise levels? Evaluation The Final Program EIR for the MASP, AASP and Related Facilities Master Plans identifies three impacts relative to noise. These include exposure of land uses to traffic noise in excess of the City's standards for exterior noise exposure,an increase in permanent or temporary ambient noise levels and exposure of residential uses to aircraft noise. Each of these impacts is identified as less-than-significant and no mitigation measures are included in the EIR. All new development in the Margarita Area and Airport Area will have to comply with City Noise Element standards, the City's Noise Ordinance,and standards included in the County Airport Land Use Commission's Airport Land Use Plan. Conclusion The Final Program EIR for the MASP, AASP and Related Facilities Master Plans assesses noise impacts relative to development in the annexation area. Impacts are mitigated through compliance with the City's Noise Element, noise ordinance and the Airport Land Use Plan. No significant impacts associated with noise were identified in the program EIR for the proposed project. Annexation will not create any direct impacts relative to noise,therefore,no additional mitigation is required. 12. POPULATION AND HOUSING. Would the ro'ect: a) Induce substantial population growth in an area, either directly for example, by proposing new homes or businesses) or indirectly (for example, through extension of roads or other X infrastructure)? b) Displace substantial numbers of existing housing, necessitating X the construction of replacement housing elsewhere? c) Displace substantial numbers of people, necessitating the X construction of replacement housing elsewhere? CITY OF SAN Luis CBISPO 13 INmAL STUDY ENVIRONMENTAL CHECKLIST 2006 MP,is Issues, Discussion and Supporting Information Sources Sources Potentiary" Potentially Las Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation. Issues Unless Impact Mitigation Incorporated Evaluation Development of the Margarita Area and Airport Area will induce population growth in the City through the provision of housing and jobs, especially head of household jobs. However, this population growth does not exceed the City's planned build-out capacity and will occur as part of implementation of the City's General Plan. Residential development is limited by the City's Growth Management Ordinance and phasing schedule,which allocates dwelling units to the City's expansion areas up to I%per year,averaged over a three-year period. Conclusion No significant impacts associated with population and housing were identified in the program EIR for the proposed project. 13.PUBLIC SERVICES. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities,the construction of which could cause significant environmental impacts,in order to maintain acceptable service ratios,response times or other performance objectives for any of the public services: a) Fire protection? X b) Police protection? X c) Schools? X d) Parks? X e) Other public facilities? X Evaluation The Final Program EIR for the MASP,AASP and Related Facilities Master Plans identifies impacts to police protection and fire protection associated with build-out of the specific plan areas. These impacts do not occur immediately upon annexation, but only after additional development in the annexation area occurs. As service demands associated with development in the annexation increase, additional staffing resources will need to be put in place to insure that the annexation areas receive the same level of service as the rest of the community. In the City of San Luis Obispo,these resources are allocated through the budget process,as opposed to the establishment of area-specific fees. School services are also evaluated in the program EIR. A conclusion is made that because the school district currently imposes impact fees in accordance with State law,impacts on the district are fully mitigated. Conclusion All impacts associated with public services and related findings can be found beginning on Page 33 of Exhibit A to the attached resolution. Unlike other issue areas evaluated in this initial study, increased demand for police and fire services occur immediately upon annexation. These impacts are considered less-than-significant,especially because City police and fire often respond to calls for service in this area under existing mutual aid agreements. Over the course of build-out of these annexation areas, additional staffing resources may be required. New facilities, such as a new police station or fire station are not anticipated. Therefore,no additional mitigation measures are required. 14.RECREATION. Would theproject: a) Increase the use of existing neighborhood or regional parks or other recreational facilities such that substantial physical 15 X deterioration of the facility would occur or be accelerated? b) Include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse X physical effect on the environment? CRY OF SAN LUIS OBISPO 14 INITIAL STUDY ENVIRONMENTAL CHECKusT 2006 achmnnfi G Issues, Discussion and Supporting information Sources Sources Potentiauy Potentially less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues Unless impact Mitigation Incorporated Evaluation City standards call for 5 acres of neighborhood park and 10 acres of total parkland per 1,000 residents. The Margarita Area meets this requirement by providing a ten acre neighborhood park and a 16 acre improved sports field at the Damon-Garcia Sports Fields Complex. In addition to these parks, a range of recreation opportunities will be provided within the Airport Area and Margarita Area through Class I bike paths, trail access to the South Street Hills and on-site features. The Airport Area Specific Plan provides incentives for amenities,such as on-site recreational facilities,that would reduce vehicle trips by employees. Conclusion Overall,development of the Margarita Area and Airport Area will have no impacts on recreation facilities because the related specific plans accommodate the recreation needs of future residents. The annexation of the Airport Area and Margarita Area is a project proposed under the Final Program EIR for the MASP,AASP and Related Facilities Master Plans. Annexation of land within the specific plan areas does not involve additional impacts relative to recreation and no additional mitigation measures are required. 15. TRANSPORTATION/TRAFFIC. Would theproject: a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system(ie.,result in a substantial increase in either the number of vehicle trips,the X volume to capacity ratio on roads,or congestion at intersections)? b) Exceed,either individually or cumulatively,a level of service standard established by the county congestion management X agency for designated roads and highways? c) Result in a change in air traffic patterns,including either an increase in traffic levels or a change in location that results in X substantial safety risks? d) Substantially increase hazards due to design features(e.g.,sharp curves or dangerous intersections)or incompatible uses(e.g.X farm equipment)? e) Result in inadequate emergency access? X f) Result in inadequate parking capacity? X g) Conflict with adopted policies,plans,or programs supporting X alternative transportation(e. .bus turnouts,bicycle racks)? Evaluation According to the Final Program EIR for the MASP, AASP and Related Facilities Master Plans development under the specific plans will cause levels of service at three major intersections to fall to LOS E or lower. These intersections include the Prado Road/South Higuera Street intersection, the Tank Farm Road/Broad Street intersection and the Los Osos Valley Road/US 101 northbound ramps. These impacts are considered significant and unavoidable. Other than these areas, the AASP and MASP integrate transportation plans that accommodate the circulation,capacity,and access needs of the proposed land uses. The transportation plans are self-mitigating in that roadway alignments,road extensions and new intersections are planned in response to the traffic projected at build-out of the land use program. Conclusion The Final Program EIR for the MASP, AASP and Related Facilities Master Plans assesses transportation and traffic impacts relative to development in the annexation area. With build-out of the specific plans,three intersections in the vicinity of the IX-3 CITY OF SAN LUIS Oaispo 15 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006 f 6 Issues, Discussion and Supporting information Sources Sources Potentumy potentially Less Than No Significant Significant Significant Impact ER#172-05 Margarita/Airport Area Annexation Issues unless impact Mitigation Incorporated annexation area would operate at LOS E or lower. No feasible mitigation exists to eliminate these impacts. All impacts associated with trafic and related findings can be found beginning on Page 23 of Exhibit A to the attached resolution. The Statement of Overriding Considerations begins on Page 44 of Exhibit A to the attached resolution. The annexation of the Airport Area and Margarita Area is a project proposed under the Final Program EIR for the MASP, AASP and Related Facilities Master Plans. Annexation will not create any direct impacts relative to transportation and traffic, therefore,no additional mitigation is required. 16.UTHXrM AND SERVICE SYSTEMS. Would the ro'ect: a) Exceed wastewater treatment requirements of the applicable X Regional Water Quality Control Board? b) Require or result in the construction or expansion of new water or wastewater treatment facilities or expansion of existing facilities,the construction of which could cause significant X environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities,the X construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources,or are new and X expanded entitlements needed? e) Result in a determination by the wastewater treatment provider X which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitment? f) Be served by a landfill with sufficient permitted capacity to X accommodate the project's solid waste disposal needs? g) Comply with federal,state,and local statutes and regulations X related to solid waste? Evaluation According to the Final Program EIR for the MASP, AASP and Related Facilities Master Plans future development in the Airport Area will cause significant and unavoidable impacts in the areas of water supply and distribution facilities, sewer mains and capacity,and storm drainage facilities. These impacts were identified because the Facilities Master Plans that were developed early in the specific plan process did not evaluate service to certain areas outside of the 1994 Urban Reserve Line, which were ultimately included in the land use plan for the Airport Area. These areas include the Avila Ranch and property east of the airport and Broad Street. Because these areas were not included in the Facilities Master Plans,the Airport Area Specific Plan says that additional engineering studies are required before any development can be approved (AASP, text on Page 7-5 and Figure 7-1). Impacts related to solid waste and landfill capacity are considered less-than-significant because specific plan development would generate approximately 42,840 pounds per day, which is consistent with the solid waste projections included in the City's General Plan build-out scenario. Conclusion The Final Program EIR for the MASP, AASP and Related Facilities Master Plans assesses utilities and service system impacts relative to development in the annexation area. Significant and unavoidable impacts are identified relative to utilities and service systems in areas outside of the City's 1994 urban reserve line boundary. No feasible mitigation exists to eliminate the impact associated with utilities and service systems. A Statement of Overriding Considerations was adopted by the City i 5y CRY OF SAN Luis OBISPo 16 INmAL STUDY ENVIRONMEWAL CHECKLIST 2006 1 b+ h m .• Issues, Discussion and Supporting Information Sources Sources Potenttauy Potent y Te§s an' No Significant Significant Significant Gapact ER #172-05 Margarita/Airport Area Annexation Issues unless Impact Nfitigation Inc orated Council in Resolution No.9726(Attachment 4). All impacts associated with utilities and service systems and related findings can be found beginning on Page 33 of Exhibit A to the attached resolution. The Statement of Overriding Considerations begins on Page 44 of Exhibit A to the attached resolution. The annexation of the Airport Area and Margarita Area is a project.proposed under the Final Program EIR for the MASP, AASP and Related Facilities Master Plans. Annexation of land within the specific plan areas does not involve additional impacts relative to utilities and service systems,therefore,no additional mitigation measures are required. 17.MANDATORY FINDINGS OF SIGNIFICANCE. a) Does the project have the potential to degrade the quality of the environment,substantially reduce the habitat of a fish or wildlife species,cause a fish or wildlife population to drop below self- sustaining levels,threaten to eliminate a plant or animal X community,reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? The Final Program EIR for the MASP,AASP and Related Facilities Master Plans assesses a wide range of impacts relative to the quality of the environment, specifically with respect to fish and wildlife habitat and rare or endangered species. All impacts associated with biological resources are mitigated to less than significant levels through the policies and program contained in the MASP and AASP. Additional requirements for impact analyses and assessments are required for development projects in the annexation area, depending on the scope of the proposed project The annexation that is proposed at this time does not have the potential to degrade the quality of the environment, substantially reduce habitat or threaten any plant or animal community. b) Does the project have impacts that are individually limited,but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable X when viewed in connection with the effects of the past projects, the effects of other current projects,and the effects of probable futureprojects) Because of the program nature of the Program EIR for the MASP, AASP and Related Facilities Master Plans,each of the issue areas discussed includes an evaluation of cumulative impacts. Therefore, all of the mitigation measures adopted with the MASP and the AASP address cumulative impacts. The annexation itself does not involve impacts that are considered cumulatively considerable,because annexation is one step towards implementation of the adopted specific plans. c) Does the project have environmental effects which will cause g substantial adverse effects on human beings,either directly or indirectly? The proposed annexation will no cause substantial adverse effects on human beings. 18.EARLIER ANALYSES. Earlier analysis may be used where,pursuant to the tiering, program EIR or other CEQA process,one or more effects have been adequately analyzed in an earlier EIR or Negative Declaration. Section 15063 (c) (3) (D). In this case a discussion should identify the following items: a) Earlier analysis used. Identify-earlier analyses and state where they are available for review. 1) Final Environmental Impact Report. Land Use Element/Circulation Element Updates,City of San Luis Obispo, August 1994. SCH#92101006 2) Final Program Environmental Impact Report. Airport Area and Margarita Area Specific Plans and Related Facilities Master Plans. September 2003. SCH#2000051062. CITY OF SAN LUIS OBISPO 17 INITIAL STUDY ENVIRONMENTAL CHECKLIST 2006 11 :c^,C,1rnent 6 Issues, Discussion and Supporting information Sources sourres Potentially Potentially Las Than No significant Significant Significant impact ER#172-05 Margarita/Airport Area Annexation Issues unless hnpact Mitigation Incorporated b) Impacts adequately addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards,and state whether such effects were addressed by mitigation measures based on the earlier analysis. No effects of the proposed annexation were identified that were addressed by mitigation measures based on earlier analysis. c) Mitigation measures. For effects that are "Less than Significant with Mitigation Incorporated,"describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions of the project. No mitigation measures were incorporated from earlier documents. 19. SOURCE REFERENCES. 1. Conservation and Open Space Element,City of San Luis Obispo,2006 2. Final Program EIR,AASP,MASP and Related Facilities Master Plans,City of San Luis Obispo,September 2003 3. GIS Data downloaded from the Farmland Mapping and Monitoring Program website: www.consrv.ca.gov/DLRP/finmp/ 4. APCD Clean Air Plan 5. City of San Luis Obispo Historical Preservation Program Guidelines 6. City of San Luis Obispo Safety Element,July 2000 7. City of San Luis Obispo,Waterways Management Plan, 8. Flood Insurance Rate Ma (Community Panel#060310-0005C),July 7, 1981. 9. City of San Luis Obispo,Noise Guidebook,May 1996 10. City of San Luis Obispo,Noise Element,May 1996 Attachments: Attachment 1: Vicinity Map(Boundaries of Proposed Annexation Areas) Attachment 2: Margarita Area Zoning Map Attachment 3: Airport Area Zoning Map Attachment 4: City Council Resolution No. 9726,certifying the Program Final EIR for the MASP,AASP and Related Facilities Master Plans CrrY OF SAN Luis Osispo 18 INmAL STuOY ENVIRONMENTAL CHECKLIST 2006 w y act meet S CO 3Y c 4t+ do C M Q c IA f r •.oy ^` u `.' ;.:. o YJ r j. CU IQ r 3 y v `` , ; may © 1 yry• '. '.. 1pY a 11 r.;./ L , f a Ji,> I l(_ r t ti f.gFf r. a•, Y1 A tT" y, y, +A \j Oro' o,. v I.l L--, a i• t`T,J *' ,i...J - r f tt *. 1^I 't [[ e.. " i 7j ¢.i E.. ff f 6+i•+,.1"X '4 t t tR r`rt iii h.. _ i E ! da J o a'; J ' x h fd,, i c Ar ( .s S A E t•: 7 y ^ 1 d - f + r •% '.L< r C i J rs{! a,,, d+' d Y r Pt u" s s c T 1 J,'F t n 7 y , u R y4 " ,y iN {i i'a t c > 4 {' c'---- e r_"` ycsu SJ,h' •yy. 1 A l ! 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RESOLUTION NO.9726(2005 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO APPROVING THE AIPRORT AREA SPECIFIC PLAN, AMENDING THE GENERAL PLAN LAND USE MAP,AND ADOPTING FINDINGS OF SIGNIFICANT ENVIRONMENTAL EFFECTS AND MITIGATION MEASURES OF THE PROPOSED PROJECT INCLUDING FINDINGS OF OVERRIDING CONSIDERATION APPLICATION NO.SP,GP/R,ER 116-98) WHEREAS, the City General Plan (Land Use Element Policies LU 2.3 and LU 2.3.1) requires the preparation of a specific plan for the Airport Area prior to annexation and further development,and sets specific requirements for information to be included in the Plan;and WHEREAS, the City of San Luis Obispo General Plan contains general goals and policies relating to growth and development in the Airport Area,which may be implemented in a variety of ways, including the specific plan procedure as outlined by California State Law (State Government Code 65450 et.seq.); and WHEREAS, the City of San Luis Obispo, with the participation of property owners, citizens, public agencies, and other interested parties, has prepared a draft spec plan for the Airport Area pursuant to the General Plan and the State Government Code; and WHEREAS, on March 9, 2005, and again on April 13, 2005, the Planning Commission held a public hearing to consider the recommendations of staff and consider the Specific Plan map, text and necessary changes to the General Plan Map and Zoning Map to implement the Specific Plan for the purpose of making a recommendation to the City Council; and WHEREAS, on April 13, 2005, the Planning Commission recommended that the City Council adopt the Specific Plan with findings of significant environmental effects, mitigation measures and findings of overriding considerations; and WHEREAS, on June 14, July 26, and August 23, 2005, the City Council held public hearings to consider the recommendations of the Planning Commission and staff, and to consider the Specific Plan map, text and necessary changes to the General Plan Map and Zoning Map to implement the Specific Plan; and WHEREAS, the California Government Code requires that a specific plan be consistent with the City's General Plan;and WHEREAS, as a result of its deliberations, the City Council has decided to adopt the Airport Area Specific Plan. R 9726 Resolution No. 9726 (2005 Series) Attachment G Page 2 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo,the following: SECTION 1. EIR Findings. The City Council hereby adopts findings of significant environmental effects, including findings for a Statement of Overriding Considerations, for the Final Program Environmental Impact Report for the Airport Area and Margarita Area Specific Plans and Related Facilities Master Plans (September 2003), as listed in Exhibit "A", with the incorporation of the mitigation measures and monitoring programs outlined in Exhibit `B", and based on the following findings: 1. The Final Program EIR was prepared in compliance with the California Environmental Quality Act (CEQA)and was considered by the City prior to any approvals of the project. 2. The Final EIR reflects the independent judgment of the City. 3. The Mitigation Monitoring Program has been reviewed and approved by the Planning Commission and the City Council in conjunction with the recommendation for certification of the Final Program EIR. 4. For each significant effect identified in the Final Program EIR under the categories of Land Use and Aesthetics, Hydrology and Water Quality, Traffic and Circulation, Air Quality, Noise, Hazardous Materials, Public Services, Cultural Resources and Cumulative Impacts, the approved mitigation measures contained in the EIR will avoid or substantially lessen the identified adverse environmental impacts of the project to a level of insignificance and have been incorporated into the project. 5. There are seven impacts identified in the EIR that, even after mitigation, are considered significant and unavoidable: (1)Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses, (2) Impact LU-6: Change in Views, (3) Impact T-2(AIternative 3): LOS in Excess of LOS D. (4) Impact PS-1 (Alternative 3): Impacts on Water Supply and Distribution Facilities, (5) Impact PS-2 (Alternative 3): Impacts on Sewer Mains and Capacity, and Expansion of Treatment Facilities, (6) Impact PS-3 (Alternative 3): Impacts on Storm Drainage Capacity, and (7) Growth Inducement: The project would have a significant and unavoidable growth-inducing impact. These significant effects identified in the EIR will not be fully mitigated to a degree of insignificance with the incorporation of all of the identified mitigation measures included in the Final Program EIR. Consequently, Council has adopted findings for the Statement of Overriding Considerations,as shown in Section 6 of Exhibit"A." SECTION 2. Specific.Plan Approval. Pursuant to Sections 65450 through 65457 of the California Government Code and the City's General Plan, the City Council hereby approves the Planning Commission Draft of the Airport Area Specific Plan, subject to the following findings: 1. The specific plan is consistent with General Plan because it will direct all facets of future development of the Airport Area, including the distribution of land uses, the location and sizing of infrastructure,site planning, architectural guidelines,phasing,and the method of financing public improvements. The Specific Plan will provide for the type of growth Attac; MP,nt 6 Resolution No. 9726 (2005 Series) Page 3 and development envisioned by the General Plan for the Airport Area. 2. All subjects required in a specific plan by the California Government Code and applicable City ordinances are appropriately and adequately covered 3. The types and intensity of land uses are designed to be consistent with the SIA County Regional Airport Land Use Plan to ensure compatibility with airport operations. SECTION 3. Specific Plan Modifications. The Community Development Director shall cause the following changes to occur to the Planning Commission Draft of the Airport Area Specific Plan prior to its publication. 1. Figure 4-1,Land Use Designations, shall be modified to reflect Alternative 3 as described in the Final EIR, with the URL to be held north of the land designated Agriculture, as shown in Exhibit C. All other AASP figures, tables and text shall be modified as necessary to reflect the boundaries and land use designations established by Figure 4-1, Exhibit C. 2. The AASP shall be revised to reflect the changes requested by the Airport Land Use Commission,as shown in Exhibit D. 3. The Conservation chapter program regarding expansion of wetlands north of Tank Farm Road, which was previously deleted by the Planning Commission, shall be replaced as follows: Program 3.3.18: Expand the existing major wetland north of Tank Farm Road to the northwest and provide a suitable upland edge, in conjunction with redevelopment of the part of the Unocal property that contained company offices. 4. Standards 6.4.9.1 through 6.4.9.4 shall be revised to reduce the threshold for requiring participation in Transit Demand Management strategies from 50 employees to 25 employees. 5. Program 63J shall be added to require development in the Airport Area to provide for transit facilities such as bus stops with turnouts, transit pads and shelters adjacent to new development as part of the development review process. 6. Mitigation Measure PS-1.1 shall be implemented by adding Policies 7.2.1 and 7.3.1 to require development south of the 1994 URL and east of the airport to submit an engineering feasibility study for water and wastewater service. 7. Goal 4.1.11: Agricultural Buffers shall be added as follows: Preservation of agricultural land and open space for on-going agricultural uses. This is accomplished through the provision of buffers on urban land so land use conflicts are diminished 8. Policy 42.7: Agriculture shall be as follows:Areas designated Agriculture are intended to encourage conservation of agricultural lands and continuation of agricultural uses and keeping of livestock where compatible with urban development. The sites designated as n+ hmAnt 6 i Resolution No. 9726 (2005 Series) Page 4 Agriculture in the Airport Area have historically been used for agricultural uses and are bordered by agricultural buffers on the parcels being developed with urban uses to insure compatibility between the uses. 9. Figure 6-7 shall be deleted and Standards 6.4.2.1 through 6.4.2.4, and Figure 6-6 shall be revised to identify Tank Farm Road as an urban road with a continuous 4-lane section. 10.Figures 6-8 and 6-9, and Table 4.7 (Setback Standards), shall be revised to require setbacks for all physical improvements along Buckley Road in order to allow for the roadway to be widened to four lanes in the future, if such widening becomes necessary. Figure 640 shall be deleted. 11.Policy 4.5.1 regarding the Cluster Development Zone shall be revised as follows: The AASP shall meet the open space requirements of the ALUP, and the area shown in the Figure 4-5 shall be maintained in a manner that qualifies the area as a Cluster Development Zone (CDZ), to the approval of the.Airport Land Use Commission. Figure 4-5 shall be revised as shown in Exhibit E. 12.Policy 4.5.2 regarding Airport Compatible Open Space on the Avila Ranch property shall be revised as follows: The agricultural buffer along the southwest boundary ofthe Avila Ranch and Airport Area shall be maintained as Airport Compatible Open Space(ACOS), per the requirements of the ALUP. 13.The second sentence of Section 7.4 shall be revised to provide encouragement for all forms of alternative energy production as follows: Although there are no area-wide plans for wind geothermal, solar or biomass energy production, development of such energy resources should be encouraged where feasible and consistent with the City's Conservation and Open Space Element. 14.All required mitigation measures from the Final EIR that have not been directly incorporated into the Specific Plan shall be included in an Appendix of the Specific Plan, as shown in Exhibit F, and references to the appendix shall be made in the AASP where appropriate. 15. Footnote #1 to Table 4.3 (AASP Page 4-19) shall be revised to include the following statement: Floor area limitations shall not apply to bank headquarters. 16.Table 4.4, Parcel Dimensions, shall be revised to include footnote (c), as follows: Common interest subdivisions are permitted subject to the requirements of the City's Subdivision Regulations. 17. References to the Unocal Collector road, including the Primary Circulation Plan (Figure 6-1),shall be revised to designate the road as a"local"road. SECTION 4. General Plan Amendment. The City General Plan, including the UrbanReserveLine, the Land Use Element Map, and the Street Classification Map, shall be amended Attachment 6 Resolution No. 9726 (2005 Series) Page 5 to reflect the adopted boundaries, land uses and streets approved as part of the Airport Area Specific Plan, as shown in "Exhibit C." On motion of Council Member Settle, seconded by Vice Mayor Ewan, and on the following roll call vote: AYES: Council Members Brown and Settle, Vice Mayor Ewan and Mayor Romero NOES`. Council Member Mulholland ABSENT:None The foregoing resolution was passed and adopted this 23'd day of August 2005. Mayor David F. Romero ATTEST: Audrey Hooper City Clerk APPROVED AS TO FORM: a JJQq.tadP.Lowell, City Attorney Attachment 6 Exhibit A SECTION 1. INTRODUCTION The City of San Luis Obispo (City) has decided to approve the Airport Area and Margarita Area Specific Plans and Related Master Facilities Plans (project). The City is the lead agency under the California Environmental Quality Act (CEQA) and has certified a program environmental impact report(EIR)for the project. Section 15091 of the State CEQA Guidelines.(14 California Code of Regulations [CCR]) and Section 21081 of the Public Resources Code require a lead agency to adopt findings for each significant environmental impact disclosed in an EIR. Specifically, for each significant impact, the lead agency must find that: changes or alterations have been incorporated into the project to avoid or substantially lessen the significant environmental effects identified.in the EIR; such changes or alterations are within the responsibility and jurisdiction of another public agency and should be adopted by that agency;or specific economic, social, legal, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible. In addition to making a finding for each significant impact,if the lead agency approves a project without mitigating all of the significant impacts,it must prepare a statement of overriding considerations, in which it balances the benefits of the project against the unavoidable environmental risks. The statement of overriding considerations must explain the social, economic, or other reasons for approving the project despite its environmental impacts (14 CCR 15093, Pub. Res. Code 21081). This document contains the findings and statement of overriding considerations for the approval of the Airport Area and Margarita Area Specific Plans and Related Master Facilities Plans and reflects the City's independent judgment. This document incorporates by reference the program EIR. The EIR, specific plans, related master facilities plans, and other portions of the administrative record are available for review at: City of San Luis Obispo Community Development.Department 990 Palm Street San Luis Obispo, CA 93401 Contact: Mike Draze 805)781-7274 Findings of Fact and Statement of Overridwg Considerations City of San Luis Obispo for the Airport Area and Margarita Area Specht Plans and 1 July 2005 Related Facilities Maser Pfans Exhibit A SECTION 2 PROJECT DESCRIPTION Project Objectives As required by the City General Plan, each of the specific plans is intended to contain policies and standards that will facilitate appropriate development of land, protection of open space, and provision of adequate public facilities. The specific plans are more detailed than the general plan but less precise than subdivision maps or construction plans. The overall objective of the project is to adopt specific plans for the Airport and Margarita areas,pursuant to the City General Plan. Airport Area Specific Plan Objectives Airport Area Specific Plan objectives include: identifying the infrastructure needed to provide city services to the area; facilitating the City's eventual annexation of the Airport area; ensuring that planned land uses are compatible with airport operations and consistent with the SLO County Regional Airport Land Use Plan(ALUP); accommodating businesses identified in the City's Targeted Industry Cluster Study that provide household-supporting incomes for San Luis Obispo residents; and establishing goals and policies for open space protection, conservation, and restoration. Margarita Area Specific Plan Objectives Margarita Area Specific Plan objectives include: accommodating a wide range of housing types, with an emphasis on housing affordable to those working in San Luis Obispo; protecting substantial natural habitats, including creeks, hills, wetlands, and corridors between these habitats; providing convenient access for residents to employment, basic shopping, recreation, and education through both the location of land uses and the design of circulation features; Findings of Fact and Staternea of Overriding Considerations City of San Leis Obispo for the AIrporr Area and Margarita Area Spec&7c Pians and 2 lacy 2005 Related Facilities Master Plans Exhibit A accommodating research and light manufacturing jobs that can support local households in forms compatible with airport safety and neighboring residences; ensuring that planned land uses are compatible with airport operations; and ensuring consistency with San Luis Obispo County's Airport Land Use Plan. Proposed Project The proposed project includes implementation of the goals and policies contained in the Airport Area Specific Plan, Margarita Area Specific Plan, Water System Master Plan, Wastewater Master Plan Update, and Storm Drain Master Plan. Specific Plans The specific pians include the following designations: designation of the Airport area for 2 hectares (7 acres) of Residential, 193.3 hectares 477.7 acres) of Services and Manufacturing, 93.1 hectares (230.1 acres) of Business Park, 139.9 hectares (345.9 acres)of Open Space,and 145.3 hectares(359.1 acres)of Government Facility, for a total Airport Area of 606 hectares(1499 acres); designation of the Margarita area for 75.4 hectares(186.2 acres) of Open Space, 10.5 hectares (25.9 acres) of Parks, 28.6 hectares (70.7 acres) of Residential, 1.3 hectare 3.1 acre) of Neighborhood Commercial, 0.4 hectare (.9 acre) of Special Use, 28.0 hectares (68.8 acres) of Business Park, and 19 hectares (47 acres) of Streets, for a total Margarita area of 168.7 hectares(416.1 acres); extension of Prado Road to Broad Street; extension of new commercial collector connecting Tank Farm Road and Prado Road; extension of Santa Fe Road from south of Tank Farm Road to Prado Road; extension of Buckley Road to South Higuera Street; and widening of various existing roadways,including Prado Road, and Tank Farm Road. Findings of Fact and Statement gjOverriding Considerations City of San lids Obispo for the Airport Area and Margarita Area Specift Plans and3 July 2005 Related Facilities Master Plans F,ttachment 6 Exhibit A Water System Master Plan The Water System Master Plan describes improvements to the water treatment and distribution systems to meet Citywide General Plan development needs, including needs of the Airport Area. The following is a brief summary of substantial treatment plant and facilities improvements identified in the Water System Master Plan. Recommended Treatment Plant Improvements. The recommended treatment plant improvements are as follows: Phase I: Perform a seismic evaluation of the existing treated water storage and clearwell facilities. Phase II: Add facilities to improve filtration rates, treatment processes, and emergency operations. Phase III: Monitor water levels at the forebay, improve efficiency of pump motors, evaluate means to protect the water treatment plant from railroad accidents, and improve emergency standby power capacity. Recommended Distribution Improvements. The recommended distribution improvements are: a grid of 12-inch diameter mains: three traversing east to west and three north-south mains connecting the existing 16- and 20-inch mains to the north (the mains will be located in the major roads); adding a 757,000-liter (200,000-gallon) water tank in the Edna Saddle zone in the southwestern part of the city; and adding a 4,542,000-liter (1,200,000-gallon) water tank in the Bishop zone to serve the Bishop zone. Wastewater Master Plan Update The City's Wastewater Master Plan Update addresses the city in its entirety,including the annexation areas. The plan identifies improvements to collection and treatment facilities that will be needed to provide wastewater service to future annexation areas and provides recommendations concerning Citywide wastewater system facilities. The Wastewater Master Plan Update identifies the following substantial reclamation facility and system improvements: replacing the Howard Johnson and Tank Farm pump stations; installing approximately 3,790 meters (12,400 feet) of new trunk sewer mains in the Airport area; Findings of Fact and Statement of Overriding Considerations City of San Luis Obispo for the Airport Area and Margarita Area Spec#lc P/mu and July 2005 Related Faeilitles Master Plans 4 w 1 P.ttachmEint 6 Exhibit A installing 4,000 feet (1,219.2 meters) of 16-inch discharge pipe (required at the new tank.farm facility); installing approximately 9,400 meters (30,700 feet) of new trunk sewer mains in the Margarita area; and upgrading existing pump stations in the project area. Storm Drain Master Plan The Storm Drain Master Plan addresses the East Branch San Luis Obispo Creek watershed. This watershed includes the Airport and Margarita areas as well as areas to the east. The features of the plan would, downstream of the Airport area, limit storm drainage flows at build-out to the level estimated for existing conditions, provide 100-year flood protection, provide for environmental enhancement of stream corridors, and provide individual onsite or sub-regional detention basins that will serve the area, rather than a single regional detention basin. Previous project improvement recommendations included parallel, minor creek modifications as needed and permitted by the governing entity to enhance flood conveyance capacity. However,the City has determined that the existing creeks have capacity to sufficiently convey floodwaters. The Storm Drain Master Plan identifies the following recommended improvements: replacing bridges across Acacia Creek at Tank Farm Road and the East Branch of San Luis Obispo Creek at Santa Fe Road and replacing and improving Tank Farm Creek culvert facilities at Tank Farm Road with a standard Caltrans two-span concrete slab bridge. Findings ofFact and Statement of Overriding Considerations City of San Luis Obispo for the Airport Area and Margarita Area Sprgflc Plans and5 Judy XV5 Related Facilities Master Plans 4 .. .,.4 63 Exhibit A SECTION 3. ENVIRONMENTAL IMPACT REPORT The program EIR was prepared in compliance with CEQA and State CEQA Guidelines. As such, the EIR contains analysis, at a program level, of the basic issues that will be used in conjunction with subsequent tiered environmental documents for specific projects related to the Airport Area Specific Plan, the Margarita Area Specific Plan, and the related facilities master plans. Once the Airport Area Specific Plan, Margarita Area Specific Plan, and the related facilities master plans are adopted by the City, the basic policy issues will not need to be revisited by subsequent(second-tier)documents. The initial study and Notice of Preparation of the Draft EIR were circulated to appropriate public agencies, organizations, and interested groups and individuals for a 30-day comment period that ran from May 16, 2000, to June 16, 2000. The draft EIR was released for an 80-day public and agency review period from February 15 through May 8, 2002. A public hearing on the draft EIR was held on May 8, 2002, at the joint Planning Commission/City Council hearing rooms in the City. A final EIR, which provided responses to the written and verbal comments received during the review of the draft EIR and included revisions to the draft EIR, was prepared and made available to the public and agencies on September 19, 2003. Since September 19, 2003, additional comments were provided in writing and through public testimony; responses to these additional comments since publication of the final EIR were prepared and made part of the administrative record. SECTION 4. FINDINGS FOR SIGNIFICANT ENVIRONMENTAL EFFECTS AND MITIGATION MEASURES OF THE PROPOSED PROJECT Introduction This section presents the project's significant environmental impacts and feasible mitigation measures. Section 15091 of the State CEQA Guidelines (14 California Code of Regulations CCR]) and Section 21081 of the Public Resources Code require a lead agency to make findings for each significant environmental impact disclosed in an EIR. Specifically, for each significant impact,the lead agency must find that: replacing changes or alterations have been incorporated into the project to avoid or substantially lessen the significant environmental effects identified in the EIR; such changes or alterations are within the responsibility and jurisdiction of another public agency and should be adopted by that agency;or specific economic, social, legal, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible. Findings of Fact and Statement of Overriding Considerations City of San Luis obicpo for dte Airport Area and Margarita Arca Spect is Plans and 6 July 2005 Related FacilWes Master Plans c.CrilJai 6 Exhibit A Each of these findings must be supported by substantial evidence in the administrative record. This section identifies the following environmental impacts associated with implementation of the proposed project,as identified in the program EIR: impacts that can be fully avoided or reduced to a less-than-significant level through the incorporation of feasible mitigation measures into the project; and impacts that can be reduced, but not to a less-than-significant level, through the incorporation of feasible mitigation measures into the project, and which therefore, remain significant and unavoidable. The impacts identified in this section are considered in the same sequence in which they appear in the draft EIR. Where adoption of feasible mitigation measures is not effective in avoiding an impact or reducing it to a less-than-significant level,the feasibility of adopting alternatives to the proposed project is considered in Section 5 of this document. Land Use and.Aesthetics Impact LU-1: Consistency of Proposed Specific Plans with-Applicable City Plans, Policies and Agreements The project expands the urban reserve to encompass all land designated for urban use by the County. Thus, the URL extends down to Buckley in the area west of the airport, and across Broad Street to land east of the airport. This expansion of the urban reserve, and the re- designation of lands on the City's General Plan Map in that area from Open Space to Business Park and Services and Manufacturing, would be inconsistent with City policy to limit its urban expansion to the current urban reserve. Although not consistent with City plans and policies, the proposed urban reserve is consistent with the County's plans and policies. In addition, by designating a buffer of Agriculture and Open Space land north of Buckley Road and within the URL, the proposed project implements City policy for providing a permanent greenbelt along its southern boundary. The impact remains significant and unavoidable. Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses The 1993 Land Use Element and Circulation Element Update EIR addressed the fact that annexation and development of the area in accordance with the City General Plan designations would result in the loss of agricultural resources. That loss was identified as a significant and irreversible adverse impact that could not be mitigated. Policies were incorporated into the Land Use Element to help compensate for productivity lost as a result of the conversion of agricultural lands within the urban reserve. Specifically, City policy requires direct dedication of open space areas,or payment of an in-lieu fee,for annexed land. Findings of Fact and Statement of Overriding Considerations City of San Ltis Obispo for the Airport Area and Margarita Area Sbectfc Plans and July 2005 Related Facilities Master Plans 7 ci?fl ent 6- Exhibit A The primary target of this exaction is to protect open space and agricultural lands outside, but especially those contiguous to, the City's URL. The concept is to create a permanent open space buffer/greenbelt around the city that prevents continued expansion of the urban area onto valuable agricultural and open space resources. For certain locations, the general plan calls for the open space protection area to be equal in size to the developed area or to be four times the size of the developed area.. The ratio for the Margarita area follows from the land use designations(approximately 40%open space, excluding parks). The General Plan does not set a specific ratio for the Airport Area. The in-lieu fee that has been set for the so-called interim annexations probably can achieve a ratio of 1:1 on average. Based on a review of mapping of the State's Department of Conservation farmland categories, the majority of the proposed project area (347.2 hectares [858 acres], or 61%) consists of lands with little or no agricultural value (i.e., designated by the state for Urban/Built-up or Other). Table 3A-2 shows the acreage breakdown for the project area by category. The project area has relatively limited amounts of Prime Farmland (26.3 hectares [65 acres],or 5%)and Farmland of Local Importance(16.1 hectares [40 acres], or 3%),and no lands designated for Farmlands of Statewide Importance or Unique Farmland. Farmland of Local Potential and Grazing Land, two categories with lower agricultural value, compose a larger percentage of the area(21%and 11%,respectively). Although past development and current use result in relatively low farmland classifications under the California Department of Conservation categories,the underlying soils types have the characteristics of prime soil, according to the U.S. Natural Resources Conservation Service, for most of the gently sloping part of the Margarita area and for nearly all the Airport area, excluding the Unocal property impacted by soil contamination due to the 1926 explosion and subsequent fire. The Specific Plans show urban use for approximately 12.1 hectares (30 acres) of prime farmland actively cultivated north of Tank Farm Road. There are also cultivated lands just west of the middle of the Margarita Area. The proposed project is consistent with the City General Plan, so, as anticipated in the 1993 LUE EIR, annexation and development of the area will adversely impact agricultural resources. Altogether, the proposed project will result in the loss of approximately 14.1 hectares (35 acres) of Prime Farmland (in the northwest corner of the Airport area), and 109.2 hectares (270 acres) of Farmland of Local Potential (primarily in the Margarita area and along Broad Street). Most agricultural lands that will be lost to development have been used primarily for grazing. The Airport Area Specific Plan's designation for Open Space in the central portion of the Airport area will protect areas of Prime Farmland and Farmlands of Local Importance that are actively cultivated. No areas under Williamson Act contracts are affected by the proposed project. While the loss of prime agricultural land is limited, the conversion of any lands containing prime agricultural soils associated with the proposed project is considered a signifccant and unavoidable impact. Findings of Fact and Sixenean of Overriding Consrdcrarrons City of San Lais Obispo for the Airport Area and Margarita Area Speedle Plans and g July 2005 Related Facuutes Master Plant r?Uachmnlnt 6 Exhibit A Mitigation While the loss of prime agricultural soils to urban uses is irreversible and cannot be mitigated, the following mitigation is recommended to help compensate for the loss of agricultural productivity. The intent of the mitigation is to enhance the opportunities for continued agriculture in the unincorporated areas outside the City's URL. Mitigation Measure LU-5.1: Dedicate Open Space Land or Pay In-Lieu Fees to Secure Open Space Easements onAgriculturml Land outside the URL at Ratio of No Less than 1:1 As a condition of annexation and development within the Airport and Margarita Areas, developers shall be required to dedicate open space land or pay in-lieu fees to secure open space easements on agricultural land outside the URL at a ratio of no less than 1:1. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. However,the impact would not be reduced to a less-than-significant level. A statement of overriding consideration for this impact is made in Section 6. Impact LU-6: Change in Views The proposed project will result in the change of character of the Plan areas from a generally semi-rural setting to an urban developed setting. The issue of aesthetic impacts was reviewed during the adoption of the General Plan. The conclusion was reached within Section 9.0 of the General Plan ER that urbanization would irreversibly change the visual character of the south end of the city from that of a low-density semi-rural area to a more intensely developed, suburban area. While substantial design standards are contained in the Airport.Area Specific Plan, Margarita Area Specific Plan, and the City General Plan (including the preservation of open space, hills, and development design standards), these do not change this fundamental conclusion of the General Plan EIR. No feasible mitigation exists to eliminate the impact associated with the conversion of a semi-rural landscape to an urban landscape. The impact is considered significant and unavoidable. Mitigation No mitigation measures are feasible. Finding: No Feasible Mitigation is Available. The City finds that no feasible mitigation is available and that this impact is significant and unavoidable. A statement of overriding consideration for this impact is made in Section 6. Findings of Fact and Statement of Overriding Considerations Ciry afSan Luis Obispo for die Airport Mea and Margarita Arca Speciftc.Pl=and July 2005 Related Facilities Master Plmu 9 m.nt 6 Exhibit A Impact LU-7: Potential Increase in Daytime/Nighttime Light and Glare The development of the Airport and Margarita areas for urban uses will result in an increase in daytimetnighttime light and glare within the area. These increases will be the result of new lighting at commercial, business park, and residential uses, as well as at new park facilities. Development of these sites would increase the amount of light and glare associated with development of urban uses, such as additional parking lots, building lights, and streetlights. While the types of lighting and their specific locations are not specified at this point, development proposed under this alternative would increase the amount of light into adjacent areas, including airport lands. The potential increase in light and glare is considered to be a significant impact. Mitigation Implementation of the following mitigation measure would reduce the impact to a less- than-sign#kant level. Mitigation Measure LU-7.1: Incorporate Lighting Design Standards into Margarita and Airport Area Specific Plans The City shall incorporate lighting design standards into the Margarita and Airport.Area Specific Plans. The standards shall contain specific measures to limit the amount of light trespass associated with development within the project area. Specific measures shall include the use of shielding and/or directional lighting methods to ensure that spillover light does not exceed 0.5-foot candles at adjacent property lines. lFInding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. In the. Airport Area Specific Plan this impact is addressed in the Design Guidelines for lighting. Goal 5.20, which is implemented by guidelines and standards, is intended to accomplish"a low level of ambient lighting that protects the rural ambience,while being consistent with public safety needs." Hydrology and Water Quality The program EIR previously reported in error that a significant unavoidable impact would result from constructing a dam within a watercourse in Perfumo Canyon.. However,the water reservoir to be constructed would be a tank for storage purposes only in an upland area, not an impoundment of water along a natural streamway. Therefore, no significant impacts on Hydrology and Water Quality are associated with the proposed project. Findings of Fact and Swetneta of Overriding Considerations City of san Lds Obispo for the Airport Area and Margarita Area SpecjFc Plans and July 2005 Related F=iUties Master Plans 10 7y 1 Attac"m:nt 6 Exhibit A Biological Resources Impact BI0-1: Loss or Temporary Disturbance of Annual Grassland The Margarita and Airport Areas contain 119.48 hectares (295.24 acres) of annual grassland. Implementation of this portion of the project would result in the loss or temporary disturbance of annual grassland. Annual grassland is common locally and regionally; therefore, the loss of annual grassland is typically considered less than significant. However,large portions of the project area, including areas identified for facilities master plan improvements, have not been surveyed, and sensitive resources like seasonal wetlands and drainages, patches of valley needlegrass grassland, and populations of special-status species may be found interspersed in the annual grassland. Therefore,this impact is considered signisignificant. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-significant level. Mitigation Measure BI0-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities,and Special-Status Species. Applications for subdivisions and development in grassland areas must include the result of the following surveys and studies: surveys and mapping of special-status plants identified in Table 3C-4 of the program E1R during the appropriate identification periods; surveys and mapping of special-status wildlife identified in Table 3C-5 of the program EIR during the appropriate seasons; mapping and quantification of valley needlegrass grassland inclusions; delineation and quantification of waters of the United States, including wetlands, using the Corps' 1987 wetland delineation manual (Environmental Laboratory 1987); identification of special-status species and species of local concern as identified in the(forthcoming)Conservation Element;and mapping and quantification of habitat loss. For areas of annual grassland that are determined to contain no special-status species, inclusions of valley needlegrass grassland, or seasonal wetland, no further mitigation is required. If sensitive resources are identified, please refer to the mitigation measures below to avoid, minimize,or compensate for significant impacts on these resources. This is not intended to limit other measures that the City may take regarding non-listed species. Findings of Fact and Stareman of Overriding Consideradfons City of San Luis Obispo for dm Airport Area and Margarita Arca Spectriic Plans and July 2005 Related Facilities Master Plana 11 tf.3ch,inert 6 Exhibit A Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. In the Airport Area Specific Plan significant grassland areas are designated as open space, following Figure 3-1, Open Space Resources. Policy 3.2.19 requires protection for on-site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BI0-2: Loss or Temporary Disturbance of Valley Needlegrass Grassland Valley needlegrass grassland is found within annual grassland and ruderal areas of the Airport and Margarita Areas. Patches of valley needlegrass grassland have been identified on the Unocal property of the Airport Area. There may be additional patches within the annual grassland matrix of unsurveyed portions of the Airport and Margarita Areas and Facilities Master Plan service areas. Valley needlegrass grassland has suffered extensive losses statewide and is considered a sensitive natural community by DFG. The elimination or substantial degradation of this community is considered a sign&ant impact. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-significant level. Mitigation Measure BIO-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BIO-2.1. Avoid and Minimize Impacts on Valley Needlegrass Grassland. After areas of valley needlegrass grassland are mapped and quantified Mitigation Measure BIO-1.1), the following steps should be implemented in order of preference: Avoid stands of valley needlegrass grassland whenever possible; this may be achieved by setting aside areas that contain significant stands of valley needlegrass grassland as ecological buffers or nature preserves. Minimize impacts on valley needlegrass grassland in areas that cannot be avoided completely; this may be achieved by placing orange construction barrier fencing or stakes and flags around the perimeter of needlegrass grassland stands and by restricting the operation of heavy equipment and other construction-related activities to the outside of these exclusion zones. Compensate for unavoidable losses of valley needlegrass grassland with replacement plantings at an alternative mitigation site. The project proponent should develop a mitigation and monitoring plan in coordination with DFG that specifies replacement ratios, success criteria, monitoring and reporting needs, and remediation measures. Findings of Face and Statement of Overriding Considerations City of San Luis Obispo for the Airport Area and Margartta Arca Speck Plans and1 Z Ady 2005 Related Faetlitles Master Plans 1 Exhibit A Replacement plantings should be placed adjacent to existing preserved stands to encourage natural regeneration, ensure future preservation, and create enhanced habitat values. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. In the Airport Area Specific Plan significant grassland-areas are designated as open space, following Figure 3-1, Open Space Resources. Policy 3.2.19 requires protection for on-site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BIO-5: Loss or Temporary Disturbance of Open-Water Habitat The Airport Area contains approximately 0.28 hectare (0.69 acre) of open-water habitat. There is open-water habitat on the Unocal property in the Airport Area and in limited areas in the Margarita Area and Facilities Master Plan areas. Open-water habitat may qualify as other waters of the United States subject to Corps jurisdiction under Section 404 of the Clean Water Act. The potential loss of open-water habitat is considered signif cant. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-signiftcant level. Mitigation Measure BIO-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BI"1. Avoid and Minimize Impacts on Wetland Habitat. This mitigation measure is described below. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Chapter 3 of the Airport Area Specific Plan includes many policies regarding the protection of wetland resources, including a requirement for 50-foot setbacks(Program 3.3.3),and most significant areas are designated as open space. Impact BIO-6: Loss or Temporary Disturbance of Freshwater Marsh The Airport Area contains approximately 6.78 hectares (16.76 acres) and the Margarita Area contains approximately 0.64 hectares(L59 acres) of freshwater marsh. Freshwater marsh is considered a sensitive natural community by DFG and is also considered a wetland subject to Corps jurisdiction under Section 404 of the Clean Water Act. Extensive stands of freshwater marsh have been documented on the Unocal property. Additional stands also occur along drainage ditches throughout the projegt area,including the Facilities Master Plan areas, as well as in low-lying landscape positions throughout the area. Loss or temporary disturbance of freshwater marsh is considered a significant impact. Findings of Fact ad statement of overriti reg Consuerarmts City of san Luis obupofortheAirportAreaandMargaritaAreaSpec&Plans and Related Facilities Maser Pima 13 July 200s 7/07 aC ment fi Exhibit A Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-sign ykant level. Mitigation Measure BI0-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BI0-6.1. Avoid and Minimize Impacts on Wetland Habitat. To avoid and minimize impacts to freshwater marsh and other wetland habitats, the project proponent will do all of the following: obtain a qualified wetland ecologist to conduct a delineation of waters of the United States,including wetlands,at the project site; obtain verification of the delineation from the Corps; avoid identified waters of the United States and wetlands during project design to the extent possible and establish a buffer zone around jurisdictional features to be preserved; obtain a permit from the Corps for any unavoidable fill of wetlands or other waters of the United States;and develop and implement a mitigation and monitoring plan in coordination with the agencies to compensate for losses and to ensure no net loss of wetland habitat functions and values. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Chapter 3 of the Airport Area Specific Plan includes many policies regarding the protection of wetland resources, including a requirement for 50-foot setbacks(Program 3:3:3),and most significant areas are designated as open space. Impact BI0-7: Loss or Temporary Disturbance of Seasonal Wetlands The Airport area contains approximately 20.12 hectares (49.72 acres) and the Margarita area contains 3.76 hectares (9.30 acres) of existing and potential seasonal wetlands. Seasonal wetlands have been documented throughout the Unocal property in the Airport area and are likely present throughout unsurveyed portions of the planning area, including the facilities master plan service areas. Seasonal wetlands are considered sensitive natural communities by DFG and qualify as wetlands subject to Corps jurisdiction under Section 404 of the CWA. Impacts on seasonal wetlands are considered significdnt. Findings of Fact and Swtentent e0yerriding Considerations City of San Leis Obispo for the Airport Area and Margarita Area Specific Plans and Jsly 2005 Related Facilities Master Plans 14 u Attach pr-It E Exhibit A Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-significant level. Mitigation Measure BI0.1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BIO-6.1.. Avoid and Minimize Impacts on Wetland Habitat. This mitigation measure is described above. Finding: h itigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Chapter 3 of the Airport Area Specific Plan includes many policies regarding the protection of wetland resources, including a requirement for 50-foot setbacks (Program 3.3:3), and most significant areas are designated as open space. Impact BI0-8: Loss or Temporary Disturbance of Riparian Woodland and Scrub The Airport area contains approximately 8.39 hectares (20.72 acres)of riparian woodland and scrub. Riparian woodland and scrub are found on the Unocal property, along the East Branch of Acacia Creek, and in other localized occurrences along unmapped drainage ditches or low-lying areas throughout the planning area and facilities master plan service areas. Additionally, the Margarita area contains 0.27 hectare (0.66 acre) of riparian woodland and scrub. Riparian woodland and scrub are considered sensitive natural communities by DFG and are likewise protected by the City General Plan and proposed Specific Plans• policies. The riparian woodland and scrub may also qualify as wetlands subject to Corps jurisdiction under Section 444 of the CWA. Impacts on riparian woodland and scrub are considered significant. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-significant level. Mitigation Measure BI0-8.1. Avoid Temporary Disturbance to Riparian Woodland and Scrub by Complying with DFG and City General Plan Guidelines and Specific Plan requirements for Setbacks Regarding Riparian Corridors. The project proponent will do all of the following: retain a qualified biologist to identify and map riparian woodland and scrub in the project area; Findings of Fact and Statement of Overriding Considerations City i f san Luis Obispo for tie Airport Area and Margarita Area Specric Plans and July 2005 Related Factllrles Mosier Plans 15 9" r Exhibit A establish a buffer zone around the edge of the riparian habitat at a distance to be determined in cooperation with DFG and the City by installing orange construction fencing or poles and flags;and restrict construction activities to the outside of the fenced buffer zone. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. The Airport Area Specific Plan requires management programs when development is proposed along creeks (Program 3.3.1). 35-foot creek setbacks are required for major creeks. A 50-wetland setback is established,which will be implemented through subdivision and development approvals and the design of pubic facilities Program 3.3.3). Impact BI0-9: Loss or Temporary Disturbance of Agricultural Fields and Congdon's Tarplant The Airport area contains approximately 39.52 hectares (97.66 acres) and the Margarita area contains approximately 2.97 hectares (7.33 acres) of agricultural fields. Agricultural fields are locally and regionally common. The loss or temporary disturbance of agricultural fields is generally considered less than significant from a biological standpoint. However, Congdon's Tarplant, a special-status plant species, has been observed in fallow agricultural fields in the planning area. Therefore, impacts on agricultural fields and Congdon's Tarplant are considered significant. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-signykant level. Mitigation Measure 11I0-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BI0-9.1. Avoid or Minimize Impacts on Special-Status Plant Species. To avoid or minimize impacts on special-status plant species, the project proponent will do all of the'following: Whenever possible, set aside as nature preserve areas known to support large populations of special-status plants. Ensure that a qualified botanist conducts surveys for special-status plant species in all portions of the planning area at the appropriate time when the plants are clearly identifiable. The botanist should document and map encountered populations. Avoid or minimize impacts on special-status plant populations to the extent possible. Fhrdings of Fact and Statement 4f Overriding Considerations City of San lids Obispo for the Airport Area and Margarita Area Specific Plans and July 2005 Related Facilities Master Plans 16 Attachment Exhibit A Compensate for the unavoidable loss or disturbance of special-status plant species. Compensation shall be implemented under a mitigation plan developed in conjunction with DFG and USFWS. The requirements for a mitigation plan will depend on the species affected by the project and the extent of impacts on the populations. Mitigation shall be implemented onsite whenever possible. Possible mitigation locations (but not required locations) for Congdon's Tarplant include those areas of the Unocal site set aside as Open Space. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted Policy 3.2.19 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BIO-11: Impacts on Special-Status Plant Species Several occurrences of special-status plant species have been reported in the Margarita and Airport areas and the facilities master plan service areas. Populations of rayless ragwort and San Luis Obispo mariposa lily occur in the South Hills, which are part of the Margarita area. These occurrences are located in areas to be designated as Open Space; therefore, no impact on these populations is expected. Many occurrences of Congdon's Tarplant have recently been documented in the Margarita and Airport areas. Although most populations occur in wetland conditions in a grassland matrix, several populations have also been documented in disturbed areas, including fallow fields. Impacts on special-status plant species are considered signUiicant. Mitigation Implementation of the following mitigation measure would reduce this impact to a less- than-signijtcant level. Mitigation Measure 11I04.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BIO-9.1. Avoid or Minimize Impacts on Special-Status Plant Species. This mitigation measure is described above. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Policy 3,2.19 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Findings of Fact and Swentent ofOverri&q Considerations City of San Luis Obispo for the Airport Area and Margarita Area Spec&Plans and July 2005 Related Facilities Master Plans 17 A i+.. r1 Exhibit A Impact BIO-12: Impacts on Non-Listed Special-Status Wildlife Species Several occurrences of special-status species have been reported in the Margarita and Airport Areas. Many more special-status species have the potential for occurrence in these areas Table 3C-5). Impacts on special-status wildlife species are considered si'gno=t. Mitigation Measure BIO-1.1. Conduct Surveys for Wetland Resources, Sensitive Natural Communities, and Special-Status Species. This mitigation measure is described above. Mitigation Measure BI0-12.1. Avoid or Minimize Impacts on Non-Listed,Special- Status Wildlife Species. To avoid or minimize impacts on non-listed, special-status wildlife species (Table 3C-5 of the program EIR),the project proponent will do all of the following: Ensure that a qualified biologist conducts surveys for non-listed special-status wildlife species in all portions of the planning area at the appropriate time for each species. The biologist should document and map encountered individuals. Avoid or minimize impacts on non-listed special-status wildlife populations and individuals to the extent possible. Ensure that a qualified biologist conducts protocol-level surveys for burrowing owls and,if presence is confirmed,develops a mitigation plan following DFO guidelines. Surveys would be conducted at suitable breeding habitat for nesting tricolored blackbirds before construction begins. Surveys would be conducted 20 times during the nesting season (April 1 July 15). If nesting tricolored blackbirds are found, the project proponent shall avoid impacts on the species by one of two methods: avoiding construction within 500 fat of an active nesting colony during the nesting season or constructing the interceptor during the nonbreeding season (July 15mMarch 31). Barrier fencing would be used to establish buffer zones around the active colonies. Removal of suitable breeding habitat should also be minimized through the project design. If nesting habitat is unoccupied, construction in the area could occur at any time; however,removal of suitable breeding habitat should be minimized. Compensate for the unavoidable loss or disturbance of non-listed special-status wildlife species. Compensation shall be implemented under a mitigation plan developed in conjunction with DFG and USFWS. The requirements for a mitigation plan will depend on the species affected by the project and the extent of impacts on the populations. Mitigation shall be implemented onsite whenever possible. Finding: Mitigation Has Been Incorporated into the Project. The City fords that the mitigation measure is feasible and has been adopted Policy 3.219 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Findings of Fact and Swenw t of Overriding Considerations City of San lois Obispo for the Airport Area and Margarita Area Spec(ftc Plans and July 2005 Related Faditttes Master Plans 18 Q' 6 Exhibit A Impact BIO-13: Potential Direct Mortality or Disturbance of California Red-Legged Frogs California red-legged frogs have been observed in the creeks in the San Luis Obispo area, including Acacia Creek,the perennial stream on the eastern and southem edge of the Tank Farm. Implementing construction activities or projects in the Airport area, including the facilities master plans could require removal of riparian or-marsh vegetation or disturbance of stream habitat along the South Fork of Acacia Creek or ponds and marshes in the area. This could cause direct mortality of red-legged frogs or removal of their habitat. This potential impact on the California red-legged frog is considered significant because the Airport area, and to a lesser extent the Margarita area, are within the range of the species, suitable habitat is present, and the species has been recorded in the vicinity. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-signtieaant level. Mitigation Measure BIO-13.1. Avoid Potential Direct Mortality and Loss of California Red-Legged bogs. Prior to the initial site investigation and subsequent ground disturbing activities, a qualified biologist will instruct all project personnel in worker awareness training, including recognition of California red-legged frogs and their habitat. A qualified biologist will conduct pre-construction surveys within the project area no earlier than 2 days before ground-disturbing activities. No activities shall occur after October 15 or the onset of the rainy season, whichever occurs first, until May 1 except for during periods greater than 72 hours without precipitation. Activities can only resume after site inspection by a qualified biologist. The rainy season is defined as: a frontal system that results in depositing 0.25 inches or more of precipitation in one event. Vehicles to and from the project site will be confined to existing roadways to minimize disturbance of habitat. Prior to movement of a backhoe in the project area, a qualified biologist will make sure the route is clear of California red-legged frogs. If a California red-legged frog is encountered during excavations, or any project activities, activities will cease until the frog is removed and relocated by an USFWS- approved biologist. Any incidental take will be reported to the USFWS immediately by telephone at(916)414-6600. Findings of Fact and Statement of Overriding Conslderadaas Civ of Sall Lais Obispo for die Aitpmt Arca and Margarita Area Specjfic Plans and July 2005 Related Facilities Master Plans 19 0 LW Exhibit A If suitable wetland habitat is disturbed or removed, the project proponent will restore the suitable habitat back to its original value by covering bare areas with mulch and revegetating all cleared areas with wetland species that are currently found in the project area. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Policy 3.2.19 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BIO-14: Potential Direct Mortality of or Indirect Impacts on Vernal Pool Fairy Shrimp and California Tiger Salamanders Implementing the specific plans could result in the loss of, or disturbance to, veinal pool fairy shrimp and California tiger salamanders (if they occur in the planning area) if there are vernal pools or other suitable seasonal wetlands within 250 feet of project activities. Direct or indirect impacts on vernal pool fairy shrimp and tiger salamanders are considered significant because the species are listed under the federal ESA and a candidate for federal listing, respectively. Mitigation Implementation of the following mitigation measure would reduce this impact to a less-than-significant level. Mitigation Measure BIO-14.1. Compensate for Direct and Indirect Impacts on Vernal Pool and Seasonal Wetland Vernal Pool Fairy Shrimp and California Tiger Salamander Habitat. If vernal pool fairy shrimp or tiger salamander habitat is present and cannot be avoided, the project proponent will compensate for direct and indirect effects on the habitat. The project proponent will conduct an onsite visit with USFWS and DFG to determine whether potential vernal pools or seasonal wetlands in the Airport and Margarita areas are suitable fairy shrimp and tiger salamander habitat. If there is no suitable fairy shrimp and tiger salamander habitat, no additional mitigation is needed. If there is suitable habitat,the project proponent can assume that it is occupied and mitigate the loss of habitat, or can retain a qualified biologist to conduct USFWS protocol-Ievel surveys and determine presence or absence. These surveys typically require two seasons of surveys during the winter-wet season; therefore, most project proponents assume presence and mitigate the loss of fairy shrimp and tiger salamander habitat. This compensation will be achieved by implementing the following measures, as described in the programmatic agreement between USFWS and the Corps: Create suitable fairy shrimp habitat (i.e., vernal pools or other suitable seasonal wetlands) at a 1:1 ratio or other ratio approved by the USFWS. The habitat must be created at a location approved by USFWS. Findings of Fact and statement of Overriding Consideiadans City ofSaa Luis Obispo for the Airpon Arra and Margarita Area Speck Plans and20 July 2005 Related Facilities Master Plops y A tac hfnar t 6 Exhibit A Preserve suitable fairy shrimp habitat at a 2:1 ratio or other ratio approved by the USFWS. The habitat must be preserved at a location approved by USFWS. Before construction starts, the project proponent will obtain authorization from USFWS to take listed fairy shrimp species that would be affected by the project. A biological opinion under the federal ESA may be needed from USFWS before construction begins. This is not intended to limit mitigation should USFWS and the Corps require a different approach. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Policy 3.2.19 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BIO-16 Potential Disturbance of Least Bells Vireos The least BellAs vireo may breed in dense riparian vegetation in the Airport Area and Margarita Area Specific Plan areas, including the facilities master plan areas. This bird is a rare breeding species in San Luis Obispo County. Because the least BellAs vireo habitat may be reduced, this impact is considered significant. Mitigation Mitigation Measure BI0-16.1. Conduct Protocol-Level Surveys for Least Belles Vireo. If the species or appropriate habitat is present, then the project proponent will implement Mitigation Measure BIO-16.2. Mitigation Measure BI0-16.2. Avoid Potential Direct Mortality and Loss of Least BellAs Vireo. The project proponent will consult with USFWS and DFG and possibly conduct a site visit with these agencies to develop measures to avoid and minimize potential impacts on this species along the stream in the Airport and Margarita areas. If potential impacts on least BellAs vireos can be avoided, no additional mitigation is needed. If potential impacts on the least Belles vireo cannot be avoided, the project proponent will implement Mitigation Measure BIO-16.3. Mitigation Measure BI0-163. Develop and Implement a Least Bells Vireo Mitigation Plan. If potential impacts on the least Belles vireo cannot be avoided along the creeks in the Airport area in the planning area, the project proponent will prepare and implement a mitigation plan and obtain the appropriate federal ESA permits,if necessary. The project proponent will consult with USFWS and DFG to determine whether additional mitigation is needed, and USFWS will assist the project proponent in determining whether incidental take authorization under the federal ESA is needed. The plan will need to include measures that would avoid and minimize impacts on the least Bellas vireo and additional habitat creation, enhancement, and management in the planning area. Findings of Fud and Stotemenr of Overriding considerations City of San Luis ObispofortheAirportArcaandMargaritaAreaSpeckPh=and July 2005RelatedFacilitiesMasterP/aru 21 ttaChment 6 Exhibit A Finding: Mitigation Ras Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted Policy 3.2.19 requires protection for on- site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Impact BIO-17: Potential Direct Mortality of or Indirect Impacts on Southwestern Pond Turtle The southwestern pond turtle is known to occur in the tributaries of San Luis Obispo Creek, and it has been observed in riparian vegetation on the Tank Farm site (Entrix 1996). Pond turtles could occur in ponds in the Airport area; they could also nest in the grasslands there, especially at the Tank Farm. Implementing construction activities or projects in the Airport area could require removal or disturbance of riparian habitats, ponds, or grasslands, but a substantial amount of habitat would not be disturbed. This could cause short-term impacts on pond turtles in the Airport area. Depending on the year and the season,eliminating the reach of Orcutt Creek, modifying Acacia Creek (including mitigation enhancements for loss at Orcutt Creek), and developing the sports fields and Prado Road extension could have adverse impacts on pond turtles. Therefore, these potential impacts on the southwestern pond turtle are considered significant Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-significant level. Mitigation Measure BIO-17.1. Avoid Potential Direct Mortality and Loss of Southwestern Pond Turtle. The project proponent will consult with USFWS and DFG and possibly conduct a site visit with these agencies to develop measures to avoid and minimize potential impacts on this species along the stream and wetlands (including ponds) in the Airport and Margarita areas. If potential impacts on the southwestern pond turtle can be avoided, no additional mitigation is needed. If potential impacts on the southwestern pond turtle cannot be avoided, the project proponent will implement Mitigation Measure BIO-17.2. Mitigation Measure BIO-17.2. Develop and Implement a Southwestern Pond Turtle Mitigation Plan. If potential impacts on the southwestern pond turtle cannot be avoided along the creeks in the Airport area and marsh and other wetlands in the planning area, the project proponent will prepare and implement a mitigation plan and obtain the appropriate federal ESA permits, if necessary. The project proponent will consult with USFWS and DFG to determine whether additional mitigation is needed, and USFWS and the Corps will assist the project proponent in determining whether incidental take authorization under the federal ESA is needed. The plan will need to include measures that would avoid and minimize impacts on the southwestern pond turtle and additional habitat creation,enhancement, and management in the planning area. Findings of Fact and Statement of Overriding Considerations, City of San Las Obispo for the Airport Area and Margarita Area Specific Plans and July 2005 Related Facilities Master Plans 22 Attachment 6 Exhibit A Finding: Mitigation IIas Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Policy 3.2.19 requires protection for on-site resources and the above survey requirements will be applied on a case-by-case basis, as development is proposed in areas that may include these resources. Traffic and Circulation Impact T-1:Secondary Impacts of Road Improvements The improvements necessary to achieve vehicular flow at the intersections listed above could cause secondary impacts on pedestrians and bicyclists. To avoid significant pedestrian and bicycle impacts, development projects in the Airport and Margarita Specific Plan areas shall include pedestrian and bicycle facilities in the design of the intersection and roadway improvements. Pedestrian facilities shall include sidewalks along both sides of all newly constructed streets and reconstructed streets, crosswalks at new intersections and reconstructed intersections, and pedestrian signals at all new and reconstructed signalized intersections. Bicycle facilities shall include Class Il bike lanes on all new and reconstructed streets per the San Luis Obispo Bicycle Transportation Plan and the Specific Plans. Bike lanes shall be included in the widening and extension of the following streets. South 11iguera Street(Tank Farm to Buckley) Broad Street(Buckley to Tank Farm Road) Prado Road(Broad Street to US 101 interchange) Santa Fe Road(Buckley to Prado road extension) The road improvements in the Margarita and Airport Area Specific Plans will result in substantial widening of roadways and intersection approaches to accommodate vehicle traffic and maintain LOS D or better. Widening of streets and intersections can result in secondary significant impacts on pedestrians and bicyclists by increasing crossing distance and introducing conflicts at intersections with multiple turning lanes unless designed properly. Mitigation Implementation of the following mitigation measures would reduce this impact to a less-than- significant level. Mitigation Measure T-1.1: Implement Design Features.The following design features should be implemented: On approaches to intersections where exclusive right-turn lanes are recommended and Class 11 bikeways are proposed, the design of the intersection shall provide bike lanes (1.2 meters in width) for through travel along the left edge of the right-tum lane. Findings of Fact aid Swenwa of Overriding Considerations City of San!tris Obispo for dm Airyon Area acrd Margarita Ano Specific Plant aid 23 July 2005 Related Facdtrtes Master P&= w Attachment 6 Exhibit A At intersection approaches where pedestrian crossing distance exceeds six travel lanes (22 meters),the intersection design shall include an Americans with Disabilities Act (ADA) compliant median refuge island (raised concrete) with pushbutton to activate the pedestrian signal. The minimum width of the median refuge shall be 1.2 meters if integral with a raised median along the entire length of the street, or 1.8 meters wide by 6 meters long if an isolated median refuge. Exceptions for this measure include locations where existing right-of-way constraints make it infeasible to widen the street for the refuge. All signalized intersections shall be designed with pedestrian signal heads and pushbutton activation. Intersections with exclusive right-tum lanes shall be designed to reduce the speed of right-turning vehicles and reduce the pedestrian crossing distance. The curb return radius should be 15 meters or less. Raised pedestrian refuges (porkchop islands) may be installed between exclusive right-turn lanes and through lanes on streets with crossings that exceed 22 meters, but the approach angle of the right turn shall be designed to minimize turning speed. Mitigation Measure T-1.2: Install New Signalized Intersection for Aero Drive and Broad Street. To mitigate significant effects on this intersection, a new signalized intersection shall be installed on Broad Street south of Aero Drive, as identified in the Airport Master Plan. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted through the standards in Chapter 6 of the Specific Plan. Impact T-2: LOS is Excess of LOS D The Prado Road/South Higuera Street intersection would operate at LOS E. The Tank Farm Road/Broad Street intersection and the Los Osos Valley Road1US 101 northbound ramps would operate at.L.OS F. Mitigation The following mitigation measures could have a positive effect on future operations at the impacted intersections, but do not change the conclusion in the Final Program Environmental. Therefore, impacts to the intersections are still considered significant and unavoidable. Mitigation Measure T-2.1: The threshold for Transportation Demand Management TDM)requirements shall be reduced to apply to employers with 25 or more employees. Findings O'Fan and Statement of Overriding Considerations City of Sim Luis Obispo for the Airport Area and Margarita Arra Speck Pians and July 2005 Related Facilities Master Plans 24 I Exhibit A Mitigation Measure T-2.2: As development occurs, require projects to improve adjacent streets to include bus stop locations,including turnouts,transit pads, shelters and other amenities to serve public transportation. Finding: Mitigation Has Been Incorporated into the Project. The above mitigation measures have been incorporated into Chapter 6 of the Specific Plan as new standards. Air Quality Impact AIR-1: Short-Term Construction Emissions Buildout under the proposed project would involve the grading and construction of residential, commercial, industrial, and recreational structures throughout the project in the Airport Area, Margarita Area, and facilities master plan service areas. All phases of site preparation and building construction would produce construction emissions. The most emissions would be generated during the initial phases of site preparation when large areas of soil would be disturbed and many large construction vehicles would be in operation. Emissions occurring during this phase would consist primarily of particulates generated by soil disturbance and combustion emissions generated by construction vehicles. The rate of particulate generation is dependent upon soil moisture and silt content,wind speed, and relative activity level. The combustion emissions generated by construction vehicles and equipment may degrade local air quality and cause exceedances of the state nitrogen dioxide standard. In addition, emissions of ozone precursors (NO. and ROG) would exacerbate existing high ozone levels in the County. The magnitude of combustion emissions is highly variable among construction sites because of the variability in the number of construction vehicles operating simultaneously. While the total acreage to be developed under buildout of the proposed project could be estimated, the phasing of individual development projects is not known. Consequently, the impact of construction emissions on regional or local air quality cannot be quantified with any accuracy. The construction emissions of each speck development project must be evaluated individually and cumulatively to determine the magnitude of impacts to regional and local air quality. This impact is considered significant Mitigation Implementation of the following mitigation measure would reduce the impact to a less- than-sign{leant level. Mitigation Measure AIR-1.1. Implement Construction-Related Combustion Emissions Mitigation. NO,, emissions will be the controlling factor in determining the application of control strategies for construction-related, combustion-related emissions. Any project requiring grading of>1,950 cubic yards/day or>50,000 cubic yards within a 3-month period will need to apply Best Available Control Technology for construction equipment combustion controls. Projects requiring>125,000 cubic yards of grading in a Findings of Fact and Staternew of Overriding Considerations City of San Luis Obispo for du Airpon Area and Margarita Arca Spec*Plant and July 2005 Related Facilites Master PZ= 25 rte'. ifachrnent 6 Exhibit A 3-month period will need to apply CBACT plus offsets and/or other mitigation. Examples of CBACT can be found in the San Luis Obispo APCD CEQA Air Quality Handbook. If impacts are still significant after application of CBACT, the following additional measures shall be implemented as necessary: use Caterpillar pre-chamber diesel engines (or equivalent), properly maintained and operated to reduce emissions of NO,,; use electrically powered equipment where feasible; maintain equipment in tune per manufacturer's specifications, except as otherwise required above; install catalytic converters on gasoline-powered equipment; substitute gasoline-powered equipment for diesel-powered equipment, where feasible; implement activity management techniques as described below;and use compressed natural gas or propane-powered portable equipment (e.g., compressors, generators, etc.) onsite instead' of diesel-powered equipment, where feasible. Mitigation Measure AIR-1.2. Implement Construction-Related Fugitive Dust PM10) Mitigation Any project with a grading area greater than 1.6 hectares (4.0 acres) of continuously worked area will exceed the 2.5 ton PM10 quarterly threshold and will requite the following mitigation measures where applicable. Proper implementation of these measures shall be assumed to achieve a 50% reduction in fugitive dust emissions. The use of soil binders on completed cut-and-fill areas has the potential to reduce fugitive dust emissions by 80%. Reduce the amount of the disturbed area where possible. Use water trucks or sprinkler systems in sufficient quantities to prevent airborne dust from leaving the site; increased watering frequency would be required whenever wind speeds exceed 15 miles per hour(mph); reclaimed(nonpotable) water should be used whenever possible. Spray all dirt stockpile areas daily as needed. Implement permanent dust control measures identified in the approved project revegetation and landscape plans as soon as possible following completion of any soil-disturbing activities. Findings of Fact and Statement of Overriding Considerations City of San Leis Obispo for the Airport Area and Margarita Area Specift Plans and July 2005 Related Facilities Mauer Plans 26 J l i 4.ttachrY ent 6 Exhibit A Sow exposed ground areas that are planned to be reworked at dates occurring 1 month after initial grading with a quickly germinating native grass seed and water until vegetation is established. Stabilize all disturbed soil areas that are not subject to revegetation using approved chemical soil binder,, jute netting, or other methods approved in advance by the APCD. Complete paving of all roadways, driveways, sidewalks, etc. that are to be paved as soon as possible;lay building pads as soon as possible after grading unless seeding or soil binders are used. Limit vehicle speeds for all construction vehicles to a maximum of 15 mph on any unpaved surface at the construction site. Cover all trucks hauling dirt,sand, soil,or other loose materials or maintain at least 2 feet of freeboard (minimum vertical distance between top of load and top of trailer) in accordance with CVC Section 23114; this measure has the potential to reduce PM10 emissions by 7.14%. Install wheel washers where vehicles enter and exit unpaved roads onto streets, or wash off trucks and equipment leaving the site; this measure has the potential to reduce PM10 emissions by 40.70%. Sweep streets at the end of each day if visible soil material is carried onto adjacent paved roads; water sweepers with reclaimed water should be used where feasible; this measure has the potential to reduce PM10 emissions by 25.60%. All PM10 mitigation measures required should be shown on grading and building plans. In addition, the contractor or builder should designate a person or persons to monitor the dust control program and to order increased watering, as necessary, to prevent transport of dust offsite. Their duties shall include holidays and weekend periods when work may not be in progress. The name and telephone number of such persons shall be provided to the APCD prior to land use clearance for map recordation and land use clearance for finish grading of the structure. Mitigation Measure AIR-I3. Implement Construction-Related Activity Management Techniques Develop a comprehensive construction activity management pian designed to minimize the amount of large construction equipment operating during any given time period. Schedule construction truck trips during non-peak hours to reduce peak hour emissions. Findings of Fact and Statement ofOverriding Considerations Clry of San Lais Obispo for die Abpart Area and Margarita Area Speck Plans and July 2005 Related Facilities Master Plans 27 r Attaahfb'@rat'lmi nf. E Exhibit A Limit the length of the construction work-day period,if necessary. Phase construction activities, if appropriate. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation is feasible and has been adopted. The above mitigation measures will be implemented through project specific mitigation measures and conditions of approval depending on the size of the project and per the recommendations of the Air Pollution Control District. Impact AIR-2: Long-Perm Operation Emissions Long-term air quality impacts would result primarily from ongoing emissions generated by the operation of motor vehicles and by natural gas combustion and electricity consumption. The land uses proposed in the project would generate new vehicle trips in the air basin. Vehicle emissions were estimated using the ARB46 URBEMI37G model. The increase in vehicle emissions associated with buildout of the project for each land use is presented in Table 3F,4 in the program EIR under transportation emissions. Development of the land uses in the project would increase the demand for electricity and natural gas for space and water heating. Electricity consumption would generate emissions from fuel combustion at powerplants. Natural gas combustion would also generate emissions directly. Emissions were estimated using URBEMIS7G and are listed in Table 3E-4 of the program EIR under area sources. Consistency with the Districtes CAP. As indicated in the APCD CEQA Air Quality Handbook, a consistency analysis is required in the environmental review for projects that involve a proposed project. The consistency analysis must evaluate the following questions: 1. Are the population projections used in the plan or project equal to or less than those used in the most recent CAP for the same area? 2. Is the rate of increase in vehicle trips and miles traveled less than or equal to the rate of population growth for the same area? 3. Have all applicable land use and transportation control measures from the CAP been included in the plan or project to the maximum extent feasible? Provided that the answer to all three of these questions is yes, the project is to be considered consistent with the CAP. If the answer to any one of the questions is no, then the emissions reductions projected in the CAP may not be achieved, which could delay or preclude attainment of the state ozone standard. This would be considered inconsistent with the CAP. The following paragraphs evaluate the proposed project based on the questions presented above. 1. Are the population projections used in the plan or project equal to or less than those used in the most recent CAP for the same area? Findings of Fact and Statement of Overriding Considemdons City of San Luis Obispo for the Airport Area and Margarita Area Speej/tc pians and July 200S Related Facilities Mamr Plans 28 9'Z 4 aCr`;ifiG,li OlExhlbltA The CAP includes population figures for incorporated and unincorporated areas of the County for 1990, as well as population projections up to year 2010. The CAP projects that the population of the San Luis Obispo area will be 49,228 in the year 2010. The proposed project uses the population projections in the San Luis Obispo General Plan and, according to the most recent plan, the population projection for the year 2010 is also 49,228. As such, the proposed project would be consistent with the population projections in the CAP. 2. Is the rate of increase in vehicle trips and miles traveled less than or equal to the rate of population growth for the same area? Due mainly to the additional employment generated in the area (more than anticipated by the 1994 Land Use and Circulation Elements update), VMT is expected to increase faster than population in the area. Over the anticipated buildout period for the area, a gradual shift to vehicles with lower emissions is expected to at least partially offset air quality impacts of increased VMT. However, rapid commercial and industrial development in the early years could exceed this compensating reduction. 3. Have all applicable land use and transportation control measures from the CAP been included in the plan or project to the maximum extent feasible? Under the San Luis Obispo Area Plan, the goals for land use were to plan compact communities, provide for mixed land use, and balance jobs and housing. The proposed project incorporated these goals from the Area Plan, which was also identified in the CAP aim to reduce the number of VMT by local residents. For example, the Margarita Area Specific Plan would allow the development of a wide variety of land uses including Residential,Park,Neighborhood Commercial, Business Parks, and Elementary School. These land uses would provide residents with convenient access to employment, basic shopping, recreation, and education through both the locations of land uses and the design of circulation features. Based on these considerations, the proposed project would be consistent with the CAP and is not expected to further delay the attainment of state and federal air quality standards within the County. Therefore,this impact is considered to be less than signfl=t. Mitigation Mitigation Measure AIR-2.1. Implement Growth-Phasing Schedule. The City will implement a growth-phasing schedule for the Airport area, to assure that nonresidential development in the urban area does not exceed the pace of residential development. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted Policy 1.4 of the Land Use Element says that the gap between housing supply and demand (due to more jobs and college enrollment) should not increase. The City Council reviews both residential and commercial development growth rates as part of the Annual Report on the General Plan. Policy 1.11.4 of the Land Use Element says that each year the City Council will evaluate the actual increase in nonresidential Findings of Fact and Swentent of Overriding Considerations City ofSan Luis ObispoforliteAlmortAreaandMargaritaAreaSpec&Plans and July 2W5 Related Facilities Mosler Plans 29 q 7 A:C;` Exhibit A ' floor area and shall consider establishing limits if the rate for any five year period exceeds five percent. If this General Plan policy is implemented through a new ordinance, then commercial floor area can be allocated, or phased, in the Airport Area, similar to the way residential dwellings are allocated to expansion areas such as the Margarita Area and Orcutt Area. Noise No significant impacts associated with Noise were identified in the program EIR for the proposed project Hazardous Materials Impact HAZ-1: Potential Construction-Related Exposure to Hazardous Materials Construction-related activities associated with specific projects in the Airport and Margarita Areas and development of roadway/utility infrastructure associated with the facility master plans would involve the use of materials that could contaminate nearby soils and water resources in the project area (e.g., petroleum-based fuels and oils, solvents, cement). Additionally, construction workers and other people could be exposed to dust or emissions containing these materials. Construction workers could also be exposed to organic pesticides, herbicides,and other hazardous materials during groundbreaking activities. Groundwater may also occur near the surface along buried infrastructure alignments. Trenches or tunnels may encounter groundwater, which may require dewatering for pipe placement. Contaminated water encountered during construction-related activities may also require special handling and disposal procedures. While known and potential hazardous materialstwaste sites have been identified in the Airport area, the potential also exists to expose construction workers to previously undiscovered hazardous materials/waste sites during development of the Margarita area Because construction-related activities could substantially increase the use of hazardous materials.and increase the risk of exposure to hazardous materials in the project area, this impact is considered significant. Mitigation Implementation of the following mitigation measures would reduce this impact to a less- than-sign{fi vW level. Mitigation Measure HAZ-1.1. Implement a Construction-Related Hazardous Materials Management Pian. Before beginning construction activities, a project proponent will submit a hazardous materials management plan for construction activities that involve hazardous materials. The plan will discuss proper handling and disposal of materials used or produced onsite, such as petroleum products, concrete, and sanitary waste. The plan will also outline a specific protocol to identify health risks associated Findings of Fact acrd Swenrau of Overriding Considerations City of Son Luft Obispo for the Airport Ana and Margarita Area Specific Plans and Ady 2W5 Related Facilities Master Pkm 30 9y A. C1~rn?; S Exhibit A with the presence of chemical compounds in the soil and/or groundwater and identify specific protective measures to be followed by the workers entering the work area If the presence of hazardous materials is suspected or encountered during construction-related activities, the project proponent will implement Mitigation Measure HAZ-1.2. Mitigation Measure HAZ-1.2. Conduct Phase I and Possibly Phase H Environmental Site Assessments to Determine Soil or Groundwater Contamination. The project proponent will complete a Phase I environmental site assessment for each proposed public facility (e.g., streets and buried infrastructure). If Phase I site assessments indicate a potential for soil and/or groundwater contamination within or adjacent to the road or utility alignments, a Phase H site assessment will be completed. The following Phase H environmental site assessments will be prepared specific to soil and/or groundwater contamination. Soil Contamination. For soil contamination, the Phase II site assessment will include soil sampling and analysis for anticipated contaminating substances. If soil contamination is exposed during construction, the San Luis Obispo Fire Department SLOFD) will be notified and a workplan to characterize and possibly remove contaminated soil will be prepared,submitted,and approved. Groundwater Contamination. For groundwater contamination, the Phase II assessment may include monitoring well installation, groundwater sampling, and analysis for anticipated contaminating substances. If groundwater contaminated by potentially hazardous materials is expected to be extracted during dewatering, the SLOFD and the Central Coast RWQCB will be notified. A contingency plan to dispose of contaminated groundwater will be developed in agreement with the SLOFD and Central Coast RWQCB before activities. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation is feasible and has been adopted. Areas within the AASP identified as being the most contaminated are designated as open space. This mitigation measure is also implemented through development review requirements and compliance with Fire Department and RWQCB requirements. Impact HAZ-2: Potential Operations-Related Exposure to Hazardous Materials Implementation of the proposed project would include the development of manufacturing and business park land uses in the Airport Area and the development of business park land uses in the Margarita Area. Operations at the sites could involve the delivery, use, manufacture, and storage of various chemicals necessary to perform manufacturing and business park activities. Operations-related activities within both the Airport and Margarita Areas could substantially increase the use of hazardous materials and increase the risk of exposure to hazardous materials in the project area. Development of the specific roadway and utility infrastructure improvements outlined in the facility master plans would not generate a substantial amount of operations- related hazardous materials. Because operations-related activities could substantially increase Fhtdings of Fact and Statm ew of Owrridiag Caw daations Cary ofSan Luis Obispo for the Airport Area and Margarita Arta Spec{Jic Plans and July 2x05 Refarea Facilities Master Pl= 31 Exhibit A the use of hazardous materials and increase the risk of exposure to hazardous materials in the project area,this impact is considered significant. Mitigation Implementation of the following mitigation measure would reduce this impact to a less- than-significant level. Mitigation Measure HAZ-2.1. Implement an Operations-Related Hazardous Materials Management Plan. The project proponent will ensure that a hazardous materials management plan for operations-related activities is established and addresses the delivery, use, manufacture, and storage of various chemicals. The plan will identify the proper handling and disposal of materials used or produced onsite, such as petroleum products, concrete, and sanitary waste. In addition, the SLOFD will conduct routine fire and life-safety inspections to determine compliance with applicable health and safety codes. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Areas within the AASP identified as being the most contaminated are designated as open space. This mitigation measure is also implemented through development review requirements and compliance with Fire Department and RWQCB requirements. Impact HAZ-3: Short-Term Surface Water Quality Degradation from Accidental Release of Hazardous Materials during Construction-Related Activities Construction-related activities associated with specific projects in the Airport and Margarita Areas and development of roadway/utility infrastructure associated with the facility master plans would require the installation of much buried infrastructure to support development. The proposed buried infrastructure may cross several drainages, and construction-related activities would involve the use of hazardous materials (q.g., oils, grease, lubricants) that could accidentally be released into local waterways. Water quality impacts would largely be determined by the duration and seasonality of construction-related activities. Specific areas of concern in the Airport area include San Luis Obispo Creek, Orcutt Creek, and Davenport Creek. Areas of concern in the Margarita Area include Acacia Creek. Although construction-related activities occurring during the dry season would have less potential to flush hazardous materials into a stream or drainage, low summer flows are less able to dilute hazardous materials entering the water column. Because construction-related activities would substantially increase the use of hazardous materials and increase the risk of accidental release of hazardous materials:into project-area drainages, this impact is considered significant. Fiadlags of Fact and Statement of Overriding Considerations City of Sae Luis Obispo for Me Airport Area and Margarita Area SpeeUic Plans and Ally 2005RelatedFacaluesMasterPlaas32 Attact;rnant 6 Exhibit A Mitigation Implementation of the following mitigation measure would reduce this impact to a less- than-sign&:ant level. Mitigation Measure HAZ-1.1. Implement a Construction-Related Hazardous Materials Management Plan. This mitigation measure is described above. Finding: Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted Areas within the AASP identified as being the most contaminated are designated as open space. This mitigation measure is also implemented through development review requirements and compliance with Fine Department and RWQCB requirements. Public Services and Utilities Impact.PS-1: Impacts on Water Supply and Distribution Facilities The project includes portions of the land use plan from EIR Alternative 3. Additional demand for water supply under Alternative 3 is similar to demand under the proposed project. However, the project would result in additional demand east of the airport and south of the URL. This area is currently not planned for development within the City General Plan or facility master plans. This area is not planned to be provided with adequate distribution facilities to serve potential development. Therefore, a signUicant and unavoidable impact exists in the area of water distribution facilities. Impact PS-2: Impacts on Sewer Mains and Capacity, and Expansion of Treatment Facilities Additional demand for water reclamation facility capacity is similar to demand under the proposed project. However,the project would result in additional demand east of the airport and south of the URL. This area is currently not planned for development within the City General Plan or the Wastewater Master Plan Update. As a result, the impacts in the area of wastewater collection are considered sign{Tcant and unavoidable.. Impact PS-3: Impacts on Storm Drain Capacity The proposed project would result in additional stormwater generation east of the airport and south of the URL. This area is currently not planned for development within the City General Plan or the Storm Drain Master Plan. As a result, impacts in the area of storinwater collection facilities are considered significant and unavoidable. Findings of Fact and Sanement Overriding Considerations Cary of Sanlyis Obispo for the Airport Areca and Margarita Area Speck Plans and July 2005 Related Facilities Master Pima 33 g r'eh;fi nn Exhibit A Mitigation The following mitigation measures address impacts PS-1 through PS-3. All impacts are considered significant and unavoidable, because the area being served includes land outside of the current URI., General Plan and service plans. However, a development review procedure is in place to insure that issues are identified are resolved prior to project approvals. Mitigation Measures PS-1.1 and PS-1.2 require future site-specific studies before the review and approval of projects in the area east of the airport and south of the URL to determine specific water, wastewater, and storm drainage system capabilities to serve the projects proposed. Because the ability to mitigate these impacts cannot be projected pending the project specific engineering study, these impacts were determined to remain significant and unavoidable. Mitigation Measure PS-1.1. Submit Engineering Feasibility Study. Before specific project review and approval of project in the area east of the airport and south of the URL the project proponent will submit a detailed engineering assessment of the specific project's water demand and sewer/wastewater, and storm drainage production, and an assessment of the City's infrastructure system to handle the project in question. The project proponent will be required to provide mitigation to offset impacts on the water, wastewater, and/or storm drainage system as determined by the City. Mitigation Measure PS-1.2. Require Developments Expanding Water, Wastewater, and Storm Drainage Infrastructure to Pay for Improvements. The City will require that new large-scale developments in the area east of the airport and south of the URL include a funding mechanism for the installation and maintenance of water, wastewater, and storm drainage infrastructure and service to the area. Finding: Mitigation Has Been Incorporated into the PmjecL The City finds that the mitigation measure is feasible and has been adopted. This mitigation measure is implemented through policies in Chapter 7(Utilities)that require performance of the requirements above. Cultural Resources Impact CR-1: Potential Damage to or Destruction of Known and/or Unknown Cultural Resources Different types of cultural resources throughout the planning areas could be affected by activities proposed within the Airport and Margarita Areas and the related facility master plan areas. For example, archaeological sites are susceptible to damage during excavation. Generally, the scientific value of archaeological sites is in the information that can be extracted about past lifestyles. Any activity that moves, removes, or destroys aspects of a site will compromise that information. The historic built environment and historic landscape are also Findings of Fact and Swtemeni of Overriding Considerations City ofSan Luis Obispo for the Airport Area and Margarita Mea Specific Pians and July 2005 Related Facilities Master Pians 34 T i Exhibit A quite susceptible to impacts associated with activities proposed under the specific plans. For example, any activity that destroys or alters the physical makeup of structures or the setting in which they exist, including, but not limited to, the construction of new structures, will compromise the integrity of these resources. Previous cultural resource field surveys have identified a wooden barn in the Airport Area and a cluster of four stone mortars in the Margarita Area. Although individual projects have not been proposed, resources associated with these findings may be adversely affected by individual projects. Impacts on these cultural resources could result from ground disturbance associated with infrastructure development and construction of new structures, roads, and underground utilities. Implementation of the proposed project would entail reuse of the area for residential, service and manufacturing, commercial, office, public, open space, recreational, infrastructure, and underground utilities. Ground disturbance associated with infrastructure development and construction of new structures, access roads, and underground utilities could have an impact on known or unknown cultural resources;therefore,this impact is considered significant. Mitigation Implementation of the following mitigation measure would reduce this impact to a less- than-significant level. Mitigation Measure CR-1.1. Protect Known and/or Unknown Cultural Resources. The City will ensure that the project proponent implements the following measures before and during development of specific projects proposed under the Airport Area and Margarita Area Specific Plans and the related facility master plans. Specific measures include the following: Conduct Surveys of Unsurveyed Areas. Before implementing project activities, pedestrian surveys will be conducted to locate and record cultural resources. Evaluate Resources within the Project Areas. Resources in the planning areas that cannot be avoided will be evaluated. Additional research and test excavations, where appropriate, will be undertaken to determine whether the resource(s) meets CEQA or NRNP significance criteria. Impacts on significant resources that cannot be avoided will be mitigated in consultation with the lead agency for the project. Possible mitigation measures include:. a data recovery program consisting of archaeological excavation to retrieve the important data from archaeological sites; development and implementation of public interpretation plans for both prehistoric and historic sites; Fu dings of Fact and SWmed of Overriding Considernlionr City of San Luis Obispo for du Airport Ana and Margarita Area Spec*Plans and 35 July 2005 Related Facilities Master Plane g Q rnrt ry`;jP Ltc Exhibit A preservation, rehabilitation, restoration, or reconstruction of historic structures according to the Secretary of Interior Standards for Treatment of Hrstoric Properties; construction of new structures in a manner consistent with the historic character of the region;and treatment of historic landscapes according to the Secretary of Interior Standards for Treatment of Historic Landscapes. If the project involves a federal agency, and is therefore subject to a Memorandum of Agreement, the inventory, evaluation, and treatment processes will be coordinated with that federal agency to ensure that the work conducted will also comply with Section 106 of the NHPA. Finding. Mitigation Has Been Incorporated into the Project. The City finds that the mitigation measure is feasible and has been adopted. Implementation of the mitigation measure will occur as part of the development review process,guided by the policies and objectives of the City's Historical Resource Preservation Program Guidelines. Cumulative Impacts Because of the program-level nature of the project, cumulative impacts are considered in each of the sections of Chapter 3 of the program EIR (and the project's significant impacts are discussed above for each resource topic listed). The project directly implements policies and plans adopted by the City,including the City General Plan. This EIR analysis uses the projection approach to cumulative impact analysis, supplemented by the policies contained in the proposed Airport Area Specific Plan and Margarita Area Specific Plan. The projection approach to cumulative impact analysis involves considering the project effects in light of the effects summarized in an adopted general plan or related planning document that is designed to evaluate regional or areawide conditions. (State CEQA Guidelines, Section 15130[b][1][B].) The analysis is based on the assumption that the cumulative impacts analysis of the general plan EIR provides an appropriate and adequate base for analysis of future development and cumulative impacts associated with the proposed project. In certain instances, the Airport Area Specific Plan and Margarita Area Specific Plan propose changes to what is currently identified in the adopted general plan. Where there are conflicts between the adopted general plan and the proposed specific plans,policies are proposed in the form of mitigation to reduce cumulative impacts. Finding: Mitigation Has Been Incorporated into the Project. Except for the impacts listed below, the City finds that the mitigation measures proposed above are feasible and have been adopted to reduce the cumulative impacts. This document will become a working part of the development review process to insure implementation of the required mitigation measures. Findings o(Fact and Statement of Overridtag Considerations City of San LLS Obispo for dw Airport Area and Margarita Area Specific Wats and July 2005 Related Fatitiries Mauer Plaas 36 DD Exhibit A Finding: No Feasible Mitigation is Available. The City finds that no feasible mitigation is available for the following cumulative impacts and that these cumulative impacts are significant and unavoidable: Impact LU-1: Consistency of Proposed Specific Plans with Applicable City Plans, Policies and Agreements Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses Impact LU-6: Change in Views Impact T-2: LOS in Excess of LOS D Impact PS-1-3: Impacts on Water Distribution Facilities, Sewer Mains and Capacity, and Expansion of Treatment Facilities,and Storm Drain Capacity. Growth Inducement: The project would have a significant and unavoidable growth- inducing impact. A statement of overriding consideration for these impacts is made in Section 6. Growth Inducement Impact: Increased Growth and Additional Secondary Growth-Related Impacts The project will result in the potential future development of the Airport and Margarita areas for residential, commercial,industrial,park, and open space uses. This includes the use of approximately 357.9 hectares (884.4 acres) for urban uses, including development of approximately 868 residential units for approximately 2,015 people. However, the project directly implements policies and plans adopted by the City,including the City General Plan. The proposed project, including the land use portion of Alternative 3, includes development beyond the existing Urban Reserve Line. The impact is considered sigiifcant and unavoidable. Mitigation Implementation of the adopted policies in the Citys general plan and mitigation measures in the General Plan EIR (aimed at reducing the secondary effects of growth),combined with implementation of the mitigation measures identified in Chapter 3 of the program EIR and the policies contained in the Airport Area Specific Plan and Margarita Area Specific Plan will reduce the secondary effects of growth associated with the proposed adoption of these specific plans and related facilities master plans. However, these impacts would not be reduced to less- than-significant levels. The project would have a signfcant and unavoidable growth-inducing impact. Short of denying the project,there is no feasible mitigation. Finding: No Feasible Mitigation is Available. The City finds that no feasible mitigation is available and that this impact is significant and unavoidable. A statement of overriding consideration for this impact is made in Section 6. Findings of Fact and Statement ofOverridbtg Considerations Cary of San Luis Obispo for the Airport Area and Margarita Area Specifte Plans and July 2005RelatedFacilitiesAlasterPians37 Exhibit A SECTION 5. FINDINGS FOR ALTERNATIVES TO THE PROPOSED PROJECT Introduction As identified in Section 4 of this document,the proposed project will cause the following significant and unavoidable environmental impacts to occur: Impact LU-1: Consistency of Proposed Specific Plans with Applicable City Plans, Policies and Agreements Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses Impact LU-6:Change in Views Impact T-2: LOS in Excess of LOS D Impact PS-1-3: Impacts on Water Distribution Facilities, Sewer Mains and Capacity, and Expansion of Treatment Facilities,and Storm Drain Capacity. Growth Inducement: The project would have a significant and unavoidable growth- inducing impact. Because the proposed project will cause significant and unavoidable environmental impacts to occur as identified above, the City must consider the feasibility of any environmentally superior alternatives to the project, as proposed. The City must evaluate whether one or more of these alternatives could substantially lessen or avoid the unavoidable significant environmental effects. As such, the environmentally superiority and feasibility of each alternative to the project is considered in this section. Specifically, this section evaluates the effectiveness of these alternatives in reducing the significant and unavoidable impacts of the proposed project. Description of the Alternatives The program EIR for the project evaluates the following four alternatives to the project. Alternative 1 Under Alternative 1, the southerly boundary of the Airport Area Specific Plan is moved northerly. The airport is excluded from the Plan area.Additionally,land to the south and west of the airport is excluded from the plan area. The total Airport Plan area is reduced by 140.3 hectares (346.6 acres). In addition to changes in the plan area boundary,the distribution of land uses within the plan area is modified as shown in Table 5-1 and Figure 24 of the program EIR and outlined below. The boundaries of the Margarita Area Specific Plan remain largely unchanged. However, the land uses within the plan area are modified as shown in Table 5-2 of the program EIR and shown below: Fladbws of Fait and Statement of Overriding Considerations City of San Lis Obispo for the Airpon Area and Margarita Area Specjfie Plans and July 2005 Related Faetlams Master Plans 38 Exhibit A designation of the Airport Area for 3.1 hectares (7.6 acres) of Medium-Density Residential, 136.1 hectares (336.4 acres) of Services and Manufacturing, 20.8 hectares(51.4 acres)of Business Park,and 103.8 hectares(256.6 acres)of Recreation and Open Space for a total Airport Area of 263.8 hectares (652.0) acres; designation of the Margarita Area for 71.1 hectares(175.6 acres) of Open Space, 10.9 hectares (26.9 acres) of parks,40.4 hectares (99.8 acres)of Residential, 0.60 hectare 1.5 acres)of Neighborhood Commercial,0.40 hectare(1.0 acre)of Special Use, 17.5 hectares (43.2 acres)of Business Park, and 27.7 hectares (68.4 acres)of Streets for a total Margarita Area of 168.6 hectares(416.4 acres); extension of Prado Road to Madonna Road; extension of Prado Road to Broad Street; construction of a roadway connection between Los Osos Valley Road and Prado Road; and extension of Buckley Road to South Higuera Street. Alternative 2 Under Alternative 2 the southerly boundary of the Airport Area Specific Plan is moved slightly south at the Airport to correspond to County Land Use designation boundaries. The airport is excluded from the Plan area. The total Airport Plan area is reduced by 39.0 hectares 96.3 acres). In addition to changes in the plan area boundary, the distribution of land uses within the plan area is modified as shown in Table 5-3 and Figure 2-5 of the program IIR and summarized below. No change is made to the land uses or boundaries of the Margarita Area Specific Plan. designation of the Airport Area for 3.1 hectares (7.6 acres) of Medium-Density Residential, 204.0 hectares (504.2 acres) of Services and Manufacturing, 29.3 hectares(72.4 acres)of Business Park, 120.3 hectares(297.3 acres)of Recreation and Open Space, and 8.4 hectares (20.8 acres) for Agriculture and Open Space for a total Airport Area of 365.1 hectares(902.3 acres); designation of the Margarita Area for 68.4 hectares(169.0 acres)of Open Space, 22.6 hectares (55.7 acres) of parks, 30.3 hectares (74.9 acres) of Residential, 0.9 hectare 2.1 acres)of Neighborhood Commercial,0.40 hectare(1.0 acre)of Special Use,27.9 hectares(68.8 acres)of Business Park,and 19 hectares(47 acres) of Streets fora total Margarita Area of 169.4 hectares(418.5 acres); extension of Prado Road to Madonna Road; extension of Prado Road(in the Margarita area)to Broad Street; Findings of Fact and Statenwit of Overriding Considerations CIO of San Luis Obispo Pr the Airport Area and Margarita Area Specific Plans and July 2005 Related Facilities Master Plans 39 r7 / meet 6 Exhibit A extension of Prado Road to Tank Farm Road; and extension of Buckley Road to South Higuera Street. Alternative 3 Under Alternative 3, the southerly boundary of the Airport Area Specific Plan is moved south along the length of the southerly boundary to correspond to County Land Use designation boundaries. The airport is excluded from the Plan area The total Airport Plan area is increased by 70.5 hectares (174.1 acres). In addition to changes in the plan area boundary, the distribution of land uses within the plan area is modified as shown in Table 5-4 and Figure 2-6 of the program E R and summarized below. No change is made to the land uses or boundaries of the Margarita Area Specific Plan. designation of the Airport Area for 3.1 hectares (7.6 acres) of Medium-Density Residential, 140.5 hectares (347.2 acres) of Services and Manufacturing, 132.0 hectares (326.1 acres) of Business Park, 117.6 hectares (290.6 acres) of Recreation and Open Space, and 81.4 hectares (201.2 acres) for Agriculture and Open Space for a total Airport Area of 474.6 hectares(1,172.7 acres); designation of the Margarita Area for 68.4 hectares (169.0 acres)of Open Space,22.6 hectares(55.7 acres) of parks, 30.3 hectares (74.9 acres) of Residential, 0.9 hectare 2.1 acres)of Neighborhood Commercial,0.40 hectare(1.0 acre)of Special Use,27.9 hectares(68.8 acres)of Business Park, and 19 hectares (47 acres)of Streets for a total Margarita Area of 169.4 hectares(418.5 acres); extension of Prado Road to Madonna Road; extension of Prado Road(in the Margarita area)to Broad Street; construction of a roadway connection between Los Osos Valley Road and Prado Road; extension of Los Osos Valley Road from South Higuera Street to Broad Street;and extension of Buckley Road to South Mguera Street. Alternative 4: No-Project As required by CEQA, this E1R evaluates the environmental consequences of not proceeding with the project. Under this alternative, no specific plans or facility plans are adopted for the Airport and Margarita Areas. The City General Plan would not allow urban development within the Airport and Margarita Arras until adoption of specific pians. As such, no further subdivision or urban development would be expected within the spec plan areas. The No-Project Alternative would not accomplish the Cityas fundamental goal of implementing Findings of Fact and Staternent of Overrong Considerations City of San Gds ONispo for the Airport Arca and Margarita Area Specific Plans and July 2005 Related Facilities Master Plans 40 Exhibit A the General PIan. The City evaluated the concept of not developing the Airport and Margarita Areas for urban uses during the General Plan and General Pian EIR processes and consideration of no further development is considered to be adequately addressed within these documents. Effectiveness of Alternatives in Avoiding Project Impacts This section evaluates the effectiveness of the alternatives in reducing the significant and unavoidable impacts of the proposed project. Impact LU-1: Consistency of Proposed Specific Plans with Applicable City Plans, Policies and Agreements The proposed project, which includes portions of the land use plan identified in Alternative 3,is inconsistent with the City's General Plan because it involves an expansion of the Urban Reserve Line (URL). Expansion of the URL is considered a growth inducing impact and also applies to Alternative 2 and 3. Alternative 1 and the No-Project Alternative do not involve an expansion of the existing URL and would reduce impact LU-1 to a less than significant level, but Alternative 1 would not be consistent with the County General Plan and would create an inconsistency between City and County plans. The No-Project Alternative would be inconsistent with the City General Plan, which says that the City should prepare a Specific Plan and annex the Airport Area. Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses Although Alternative 1 would result in fewer total acres of land converted, none of the reduced acreage is prime farmland. Therefore, the impact would remain significant and unavoidable under Alternative 1. Alternative 3 has the same impacts as the project in this case. Alternatives 2 and the No-Project Alternative would avoid the conversion of prime farmland. Therefore, under Alternatives 2 and 4, the significant unavoidable impact of conversion of prime farmland could be avoided. However, Alternatives 2 and 4 are not consistent with the City's greenbelt objectives and create an inconsistency between City and County plans. Impact LU-6: Change in Views Alternatives 1, 2, and 3 would result in the same significant unavoidable changes in views from a semi-rural landscape to an urban landscape in the Airport and Margarita areas as the proposed project;development would still occur under these alternatives as under the project. Under the No-Project Alternative, the General Plan would not allow urban development within the Airport and Margarita Areas until adoption of specific plans. As such, no further subdivision or urban development would be expected within the specific plan areas. Implementation of this alternative would, therefore, eliminate this significant unavoidable impact. However, Alternative 4 would not comply with City or County general plans. F&&ngs of Fact and Statement of Overriding Cons(derawits for the Airport Area and Margarita Arra Speolc Plan,and City ojSan Ibis Jaf2005y2005RelatedFacilitiesMasterPlmrs41 nr tt Chr'n—cant 6 Exhibit A Impact T-2: LOS In Excess of LOS D Alternatives 2, 3 and 4 would result in LOS impacts to the Broad/Tank Farm, Prado/South Higuera,and Los Osos Valley/US 101 intersections. Alternative 1 would avoid the LOS impacts associated with the project, but would not be consistent with the City's greenbelt objectives and would be inconsistent with City and County general plans. Impact PS-1-3: Impacts on Water Distribution Facilities, Sewer Mains and Capacity, and Expansion of Treatment Facilities,and Storm Drain Capacity. Alterative 3 would result in the same impacts to water distribution, wastewater collection capacity and storm drain capacity as the proposed project, which uses the land use program described in Alternative 3. Alternatives 1, 2 and 4 would avoid these impacts, but these alternatives would not be consistent with the City's greenbelt objectives and would be inconsistent with City and County general plans. Impact: Increased Growth and Additional Secondary Growth-Related Impacts With the exception of the No-Project Alternative, the alternatives to the project would result in essentially the same significant unavoidable growth inducement impacts associated with the proposed project. Under the No-Project Alternative,the General Plan would not allow urban development within the Airport and Margarita Areas until adoption of specific plans. As such, no further subdivision or urban development would be expected within the specific plan areas. Implementation of this alternative would, therefore, eliminate this significant unavoidable impact However,Alternative 4 would not comply with the City or County general plans. Environmentally Superior Alternative and Feasibility of Project Alternatives As described above, Alternatives 2,and 4(No-Project Alternative)would avoid the significant unavoidable prime farmland conversion impact of the proposed project and Alternative 4 would avoid all but one of significant unavoidable impacts caused by the project. Alternative 1 would avoid the traffic impacts and public services impacts associated with the project and would be consistent with the City's General Plan. As such,this section determines whether Alternatives 1,2,3 or 4 are environmentally superior to the proposed project, and if so, whether they are feasible. Finding: The proposed Project is Environmentally Superior to Alternative 1 Findings of Fact and Statement of Overriding CowWmdons City ofSan Leis ObLw for Ike AuporrArea and Margarita Area Specific Plans and 42 July 2005 Related F==lues Master Plans ttac, :rrnf 6. Exhibit A Alternative 1 would avoid the significant unavoidable impacts associated with traffic levels of service at three intersections. This alternative would also avoid impacts associated with public services and would not require expansion of the URL However, Alternative 1 creates a discrepancy regarding the disposition of lands south of the URL and east of the airport,as described by Impact LU-2. City growth management policies say that the URL is the"final edge for urban development," as a means of protecting agricultural and scenic rural lands. The County's designation for the land south of the URL and east of the airport is Industrial,inconsistent with the City's URL concept and greenbelt strategy. The proposed project mitigates this impact by extending the City's URL south and east to match the County's URL, as shown in the SLO Area Plan. Alternative 1 would not prevent the development in this area from occurring, but would allow it to occur in the County outside of City jurisdiction. Therefore,this alternative is not environmentally superior to the project and the City need not make a feasibility determination of the alternative. Finding. The Proposed Project is Environmentally Superior to Alternative 2 Alternative 2 would avoid the significant unavoidable prime farmland conversion impact of the proposed project but would not substantially lessen the other environmental impacts of the project. Moreover,this alternative would result in additional significant and unavoidable impacts associated with expansion beyond its current urban reserve, would not maintain an open space greenbelt around the City,and would result in unacceptable Ievels of service at the Prado Road/South Higuera Street intersection. Therefore,this alternative is not environmentally superior to the project and the City need not make a feasibility determination of the alternative. Finding: The Proposed Project is Environmentally Superior to Alternative 3 Alternative 3 would result in additional significant and unavoidable impacts associated with expansion beyond the City's current urban reserve, would result in unacceptable levels of service at the Prado Road/South Higuera Street intersection, the Tank Farm Road/Broad Street intersection, and the Los Osos Valley Road/US 101 northbound ramps, and would require land south of the URL and east of the airport to provide further analysis of water distribution and wastewater collection requirements prior to development. The proposed project is similar to Alternative 3 because it has been revised to incorporate portions of the land use plan identified for Alternative 3. However,this alternative is not environmentally superior to the project and the City need not make a feasibility determination of the alternative. Finding: Infeasible to Adopt No-Project Alternative(Alternative 4) The No-Project Alternative could avoid most of the significant unavoidable impacts of the project and would not introduce new significant and unavoidable impacts. Impacts LU-1 and T-2, described above, would still exist. However, the No-Project Alternative does not comply with the designated land uses for the project area of either the City of County. The No-Project Alternative would not accomplish the City's fundamental goal of implementing the General Plan. Moreover, the No-Project Alternative fails to meet the City's basic objectives for the Findings of Fact and Statement of Overriding Considerations City of San Luis Obispo for the Airpon Area and Margarita Area Spect'tc Pimu and hdy 2005 Related Facilities Maaer Plans 43 07 c.ftachix Fnt _6 Exhibit A — project, and thus is infeasible as a means in of satisfying those objectives. The City, therefore, finds this alternative to be infeasible to implement. SECTION 6. STATEMENT OF OVERRIDING CONSIDERATIONS Introduction The program EIR for the project identifies the following significant and unavoidable impacts of the project: e Impact LU-1: Consistency of Proposed Specific Plans with Applicable City Plans, Policies and Agreements Impact LU-5: Conversion of Prime Agricultural Land to Urban Uses Impact LU-6:Change in Views Impact T-2: LOS in Excess of LOS D Impact PS-1-3: Impacts on Water Distribution Facilities,Sewer Mains and Capacity, and Expansion of Treatment Facilities, and Storm Drain Capacity. Growth Inducement: The project would have a significant and unavoidable growth- inducing impact. For projects which would result in significant environmental impacts that cannot be avoided, CEQA requires that the lead agency balance the benefits of these projects against the unavoidable environmental risks in determining whether to approve the projects. If the benefits of these projects outweigh the unavoidable impacts,those impacts maybe considered acceptable CEQA Guidelines Section 15093[a)). CEQA requires that,before adopting such projects, the public agency adopt a Statement of Overriding Considerations setting forth the reasons why the agency finds that the benefits of the project outweigh the significant environmental effects caused by the project. This stateriient is provided below. Required Findings The City has incorporated all feasible mitigation measures into the project. Although these measures will significantly lessen the unavoidable impacts listed above,the measures will not fully avoid these impacts. The City has also examined a reasonable range of alternatives to the project and has incorporated portions of these alternatives into the project in order to reduce impacts. The City Findings of Fact and Statement of Overriding Considerations City ofSan Lids OblWfortheAirportAreaandMargaritaAreaSpecificPlansandJuly2005RelatedFacilitiesMasterPlans44 Exhibit A has determined that none of these alternatives,taken as a whole, is environmentally superior or more feasible than the project Alternative 1 would result in essentially the same impacts as the project. Alternative 2 would avoid the significant unavoidable prime farmland conversion impact of the project. However,Alternative 2 would also result in additional significant and unavoidable impacts on land use and traffic that can be avoided by implementing the project. Alternative 3 includes a more desirable land use program, which reduces some land use impacts,but includes greater traffic impacts. Alternative 4 (No-Project Alternative)would avoid many of the significant impacts of the project, but is not considered feasible. In preparing this statement of Overriding Considerations,the City has balanced the benefits of the proposed project against its unavoidable environmental risks. For the reasons specified below,the City finds that the following considerations outweigh the proposed project's unavoidable environmental risks: Provision of new jobs: The project would create new construction related and permanent jobs in the project area. Approximately 2.8 million square feet of commercial floor area could be developed in the Airport Area over the 34 years expected to be the build-out horizon for the project This would result in new jobs targeted to include the kinds of higher paying jobs that are needed to support a household within the City. Open Space and Natural Resource protection: Implementation of the project would result in the creation of open space protection, conservation, and restoration policies and the designation of 346 acres of open space and recreation in the project area The land use designation,together with the policies, will ensure that areas in the vicinity of the City are reserved for future residents' recreational use and aesthetic benefits. Significant protections for natural resources, including special status plant and animal species, are incorporated into the project to reduce potentially significant impacts to less than significant levels. Some of these protections would only be possible through the controlled implementation of the project. Provision of adequate public facilities for the region:The master facilities plans for the project will ensure that there are no shortfalls for water supply and distribution facilities,stormdrain,and wastewater facilities. Implementation.of the General Plan: The project implements a major portion of the General Plan by allowing for the annexation of the Airport Area. The annexation will allow the City to pursue its existing policies for the area such as greenbelt protection, transit service, business park development, the creation of high quality public and private facilities to support the on-going service of the Airport to the region,and growth management. Consistency Between City and County Plans: The project incorporates portions of Alternative 3 in order to insure consistency between City and Findings of Fact and Statement cf Overriding Considemdons City of San Luis ObispofortheAiryortAreaandMargaritaAreaSpecificPlansandJuly2005RetestedFacaltiesMasterP&ms 45 0 9 Attachmen- o Exhibit A County plans for the area south of the URL and east of the airport. The implementation of the land use program outlined in Alternative 3 fully mitigates Impact LU-2, however it also results in significant and unavoidable impacts to land use, traffic and public services. Nevertheless, consistency between City and County plans is considered critical for achieving other important General Plan goals such as the establishment of a permanent greenbelt south of the City, agricultural preservation, higher quality urban design, improved drainage and waterway management, provision of adequate public facilities, improved airport safety and mitigation for project related traffic impacts. Accordingly, the City finds that the project's adverse, unavoidable environmental impacts are. outweighed by these considerable benefits. Dated: 2005 Dave Romero Mayor, City of San Luis Obispo Findings of Fact and Statement of Overriding Considerxions City ofSan Luis Obispo for the Aitporl Area andMargarlta Area Spectf ie Plans and July 2005 Related Facilities Master Plans 46 Attachment 7 City Council Resolution No. (2007 Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO REQUESTING THE LOCAL AGENCY FORMATION COMMISSION INITIATE PROCEEDINGS FOR THE ANNEXATION OF APPROXIMATELY 620 ACRES OF LAND IN THE MARGARITA AREA AND AIRPORT AREA,AND ADOPTING A NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT FOR THE PROJECT ANNX/ER 172-05 WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall; 990 Palm Street, San Luis Obispo; California, on May 1, 2007, for the purpose of considering Planning Application AANX/ER 172-05, a project to annex the remaining unincorporated portions of the Margarita Area and a significant portion of the Airport Area; and WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on March 28, 2007, for the purpose of of formulating and forwarding recommendations to the City Council of the City of San Luis Obispo regarding the project; and WHEREAS, the Margarita Area Specific Plan was adopted by the City Council on October 12, 2004, and the Airport Area Specific Plan was adopted by the City Council on August 23, 2005, satisfying the requirements of the General Plan (Land Use Element policies 1.13.3, 2.3.1, 7.3 and 7.4),which require adoption of specific plans prior to annexation and WHEREAS, the proposed annexation is necessary for the City to fully implement the adopted specific plans; and WHEREAS, the City Council considered the Initial Study and Mitigated Negative Declaration of Environmental Impact (ER 172-05) for the project, and determined that the document adequately addresses the potential environmental effects of the proposed annexation; and WHEREAS, the City Council desires to initiate annexation proceedings pursuant to the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000; and WHEREAS, notice of intent to adopt this resolution of intention has been given; and WHEREAS, the proposed annexation is consistent with the adopted Sphere of Influence for the City of San Luis Obispo; and WHEREAS, the City Council has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis Obispo as follows: Attachment 7 City Council Resolution No. (2007 Series) Page 2 Section 1. Findings. Based upon all the evidence, the City Council makes the following findings: I. Annexation of land in the Margarita Area and Airport Area will promote the public health, safety and welfare by ensuring that all new development complies with the comprehensive land use plans and property development standards established in the Margarita Area Specific Plan and Airport Area Specific Plan. 2. The proposed annexation includes all of the remaining land in the Margarita Area that has not already been annexed, which will facilitate orderly development. The land proposed for annexation includes the site of the regional drainage facility, remaining portions of the right- of-way for Prado Road, the neighborhood park site, the neighborhood commercial site, open space land, and additional land zoned for residential and commercial development. 3. The proposed annexation of land in the Airport Area is consistent with Land Use Element Policy 7.3, which says that the City will actively pursue annexation of the Airport Area. 4. The proposed Negative Declaration for the project adequately addresses the environmental impacts of the project because annexation does not create any environmental effects that are different from those identified in the Final Program EIR for the Margarita Area and Airport Area Specific Plans and Related Facilities Master Plans. Section 2. Environmental Review. The City Council does hereby adopt a Negative Declaration for the project. Section 3. Action. The City Council does hereby request the Local Agency Formation Commission initiate proceedings to annex the approximately 620 acres of land in the Margarita Area and Airport Area as identified and incorporated herein by reference in Exhibit A. On motion of seconded by and on the following roll call vote: AYES: NOES: ABSENT: Attachment 7 City Council Resolution No. (2007 Series) Page 3 The foregoing resolution was passed and adopted this day of 2007. Mayor David F. Romero ATTEST: Audrey Hooper, City Clerk APPROVED AS TO FORM: Jonath Low , City Attorney G:\CD-PLAN\MCODRON\AASPIannexation\counci l(annx_res).doc 3 Ex it ACL c R 19zzmo m 9 x L u O T N 11 d LCLL a II x c If o I 1 i I I I• i 111 I i r L'•Ti.. - it \ y r^' -4' 1 OC I Imo, z I Ol j cc IB a^QJ1 I , Lb c ii c 6iti y! n 170s 1181 ti\`• f'-' t. } Vit` CC 4 AI Attachment 8 ORDINANCE NO. (2007 Series) AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO ESTABLISHING PRE-ZONING FOR LAND WITHIN THE MARGARITA AREA, CONSISTENT WITH THE MARGARITA AREA SPECIFIC PLAN ANNX/ER 172-05 (Citywide) WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on May 1, 2007, for the purpose of considering Planning Application AANX/ER 172-05, a project to annex the remaining unincorporated portions of the Margarita Area and a significant portion of, the Airport Area; and WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on March 28, 2007, for the purpose of of formulating and forwarding recommendations to the City Council of the City of San Luis Obispo regarding the project; and WHEREAS, the Margarita Area Specific Plan was adopted by the City Council on October 12, 2004; and WHEREAS, the pre-zoning of land in the Margarita Area is a necessary component of the annexation process; and WHEREAS, the City Council considered the Initial Study and Mitigated Negative Declaration of Environmental Impact (ER 172-05) for the project, and determined that the document adequately addresses the potential environmental effects of the proposed project; and WHEREAS, the City Council has duly considered all evidence, including the testimony of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of San Luis Obispo as follows: Section 1. Environmental Review. The City Council does hereby adopt a Negative Declaration for the project. Section 2. Action. The City Council does hereby approve pre-zoning to apply to land within the Margarita Area as shown in Exhibit A. Section 3. Summary. A summary of this ordinance, approved by the City Attorney, together with the names of the Council members voting for and against it, shall be published at least five days prior to its final passage, in the Tribune, a newspaper published and circulated in this City. This ordinance will go into effect at the expiration of thirty (30) days after its final passage. 1- 1150, Attachment 8 Ordinance No. (2007 Series) ANNX 172-05 (Margarita Area Pre-Zoning) INTRODUCED on the 1st day of May, 2007, AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the day of 2007, on the following roll call vote: AYES: NOES: ABSENT: Mayor David F. Romero ATTEST: Audrey Hooper, City Clerk APPROVED AS TO FORM: Jonatha City Attorney Attachment 8 Z+cn VVV3 5108d Sweet a z a v WN to m m in y00 N m W m m tU0 R • ' a tilt:•., •..;:, CL CL CL l4 E 0 N v i::::.:::•:: FL Q z z $ LL U U Z z 2:'::. CL LLI a au) oQaa & I NU) N ¢ M ViQW Im W N W Q CD CDWa m E a0) W m a m a N N S M m y W J JC- N U L # •O V O J O U RECEIVED APR 2 6 2007 L ITY CLERK April 26, 2007 City of San Luis Obispo ONCI CDDDIR FIN DIR 990 Palm Street CACr LYFIRE CHIEF San Luis Obispo, CA 93401 ERKIO G f? PO CE CHF DEPT HEADS..., RFC:DIR--_-.: Fd'UTIL`DIR- HR DIR-ds Dear Honorable Mayor Dave Romero: As you are aware the property on which Air Vol Block, Incorporated operates at #1 Suburban Road, as it has for the past 45 years, is included in the City of San Luis Obispo's current annexation plan. We are opposed to such forced annexation for the following reasons:. 1) The property is completely developed and not in need of any services the city has to offer e.g. sewer or water. 2) Services of fire and police are currently administered by CDF and the County Sheriff's Department. 3) The City's 5% utility tax is discriminatory, because we consume a lot of gas and electricity in the manufacturing of our concrete products. We estimate the annual cost at the current rate to be 20,000. Consider how unfair the utility tax is, if we purchased the products we now manufacture from outside the city our utility tax burden would be $300 to $400 a year, not $20,000... 4) Increased business taxes are estimated at over $7,000.00 per year Surely there is some vehicle wherein these inequities could be mitigated. Your indulgence would be appreciated. Sin cerQely 2-"er V P_k RED FILERobertJ. Miller MEETING AGENDA DATE' o a ITEM #___ r I P.O. Box 931 • San Luis Obispo, California 93406 • (805) 543-1314 • www.airvolblock.com RECEIVEDDearCouncil, During consideration of the Margarita annexation, please consider the se APR 2.6 2001 comments. SLO CITY CLERK The current annexation coming before you has significant portions relative to Suburban Road/Horizon Lane that are not what they appear. Staff seems to have decided that all that matters is to move forward and that they do not have to address the quality problems with the actual technical work (they missed a 15 acre functioning water detention system and misnamed ditches as creeks). Staff will not consider the legal problems they are creating with their instant takings of private property, (without any due process or legal procedure). The taking is not even mentioned in the reports. Then of course the way staff has intentionally bundled the annexation will deny Suburban Road/Horizon Lane property owner's our legal rights and due process. ' Disenfranchising by design. Disenfranchising of Suburban Road—Horizon Lane property owners. By bundling the Suburban/Horizon properties (all of which are Commercial or LL Industrial Zoned) with the large Margarita housing lands and the huge vacant X _ WQ Lr p U Q -field (rather than the other airport commercial / industrial properties) we-have o 5 W o n effectively become disenfranchised within the annexation process and have r', K LL a a actual due process or opportunities RN ( L Of all the property owners who spoke, (and who represented a clear majority f the Horizon Lane/ Suburban Road property owners) not one spoke in favor o z o immediate annexation. zS o ¢ 0 0 W At the planning commission meeting it was generally requested to separate tI " " <LO Suburban/Horizon from the Margarita housing annexation area; there was sti work to be done before annexation. All owners felt that staff should at least give a definite timetable when service could be available and that annexing Suburban/Horizon is premature. At the Planning Commission hearing Hanson aggregates pointed out that their notices had all been mailed to a wrong address—this was the first time they had any chance to evaluate the issues. I pointed out that staff had re-named the drainage ditches passing through our property as a creek and are now planning to do a taking of 1/3 of the property and '/z of the use of-the property. This issue will end up in court if staff continues to pretend they can take our property without any due process or acknowledge- ment of our civil property rights. Regarding changing drainage that has been considered only ditches for the last 75 years to "creeks", staff has so far refused to provide us with any reports, RED FILE MISEL AGENDA DA i ITEM # documentation or wry...igs of the process of changing somt..ging that always been considered a ditch to a creek. They said the did it "informally". At the Planning Commission meeting I pointed out that staff had completely missed the Tank Farm Detention system (1 leg of which they have wrongly labeled a creek when it is part of the Union Oil detention and drainage ditch system. It is totally a man made drainage ditch system). I have enclosed a separate document explaining the Tank Farm water detention system and it's workings. Staff is at full throttle and refuse to pause, look into the Tank Farm water detention system, evaluate it, and include it in the areas hydraulic plans. Staff looked into creating a detention system for the Margarita area, but their detention system was to be too expensive and the plans were not pursued (see map). Our detention system was pointed out to staff verbally in 2001 and 2004. The re-naming of the drainage ditch was addressed with Mr. Caudron in writing in 2005 as well as verbally explaining about the detention system at that time to Mr. Caudron. Staff is willing to leave the current document incorrectly reflecting the actual channels of 2 out of 3 ditches identified as "branches" of the Tank Farm drainage system. There is no point to public input or public hearings if staff can ignore such a major omission in their work. I would think they would want to address the omission, update their information and base plans on the real situation rather than continue on in error. They studied the creation of expensive detention systems.(see attached map), but won't even to look at the existing free one. The detention system is a major asset to our property and to Chevron, Inc. For staff to pretend that it doesn't exist and put their collective heads in the sand can not possibly be the best or even an acceptable path or policy for the City of SLO. Now that it can be seen that water detention can be had for free, or near free, why can't a modified version of the earlier conversation and plans regarding water detention and alternate ditch channels be considered? Mr. Hanson, my associate, was told last week by Mr. Cauldron that our parcel would not be a part of this phase of annexation—I can see nothing in the staff report that reflects this promise. In reading the planning commission's public comments it is revealing to note I did a full presentation of the detention system and even provided a map. I did not see one word of my actual testimony in the record and my very full four minutes of testimony was reduced to a fifteen second non-controversial statement. In no way do the minutes of public testimony accurately reflect the tone or the testimony of the speakers. I can not find the map I presented showing the detention system in a, y of the reports or work. Did staff just"throw away the document I provided them? In conclusion, the way staff is handling the annexation, I and all other Horizon/Suburban property owners have been disenfranchised by the bundling of totally dissimilar annexation properties for the internal purpose of stealing our rights in the annexation process to make their jobs easier. Please, 1) Annex Margarite Area separately from Suburban/Horizon (Five speakers at planning commission asked this and yet not one word in the minutes of public testimony.) 2) Have staff deal with the real issues concerning the hydrology errors and correct them. 3) Have staff deal with the concerns of the property owners, actually addressing, rather than mischaracterizing, marginalizing, minimalizing and blowing off the concerns and issues of the Suburban/Horizon property owners. Before proceeding with the annexation, these issues need to actually be explored and dealt with in a proper, fair, and professional manner. Half-truths and an "unexplainable urgency" coupled with convenience to City employees, serious errors of hydrology, and no desire to correct errors and omissions is no way for staff part to proceed no matter what! Staff's current recommendations on Suburban/Horizon are not a good way to bring us into the city. Thank you for your time and consideration on this matter. Sincerely, Richard W. Ferris 4080 Horizon Lane San Luis Obispo CA 93401 Cell: 704-8113 Office: 543-3636 Attachments:. Tank Farm Detention System Write Up Map showing studied potential detention sites Actual existing detention pond staff missed Letters from Ferris to planning Arial maps of area Planning drainage maps i I TANK FARM WATER DETENTION SYSTEM Some History — Some Information & A Plea For Removable Treatment I. HISTORY After the great Tank Farm Road fires (April 8, 1926) Union Oil Company decided to safeguard San Luis Creek from any future oil spills in case.a spill happened during the rainy season. All of the manmade Union Oil drainage ditches eventually combine and drain into San Luis Creek, so Union Oil decided to build a safeguard against oil contamination in the case of any future disasters. II. FACILITY To safeguard the outflow of water from their property they built an oil separation facility" that could process flowing water from the draining ditch.system, this facility included: I. A "head" wall with two closeable slide gates with 36 diameter output pipes 2. A ditch to serve as the regular output of one of the slide gates 3. A small "separator pond" to serve the output of the other slide gate 4. An output wall and four 9"diameter output pipes (these pulled water from the bottom of the separator pond.) On top of the output wall are four winches (to raise and lower the ends of the 8 foot long, pivoted output pipes to control the amount of water that flowed through the pipes). 5. A bypass ditch that fills & empties the detention pond 6. A approximately 15 acre water detention pond III OPERATION The separator pond originally worked by closing the main slide gate on the ditch, opening the pond slide gate and filling up the separator pond with water. An"operator" would lower as many"output pipes"as far as necessary with the winches to drain water off the bottom of the pond while leaving the pond full. This way any oil or petroleum product contamination could be kept on top of the water in the pond and clean water could continuously be released back into the same ditch served by the closed valve. After the crisis any petroleum products left in the pond could be safely removed. (Fortunately the facility never had another disaster so the pond never had to be used in an emergency.) The pond is gone, but the entire water detention system associated with its use remains. The water detention system was a necessity because the four 9" output pipes can not pass nearly as much water as the original 36"pipe that was closed to fill the separator pond. This would only be an issue in extreme rainy conditions, but to allow for that Union Oil put in a fairly large water detention pond (approximately 15 acres in surface area and total capacity will depending on water level, probably 40 to 60 acre feet). IV. SPACE FUNCTION 1 The way the system works is simple, once the water rises 4" in front of the head wall, with the two 36" pipes), the detention pond bypass channel funnels "extra" water into the large detention pond. The higher the water in the ditch at the slide valve the more water fills into the detention pond. The detention pond area expands as its water level rises and probably has a capacity at peak of at least 30 to 40 acre feet of water presently but could easily be enlarged to twice the capacity When the water in the ditch level goes down, the water flows back out of the detention pond leaving only a.3 acre"mud hole" along the bottom edge of the pond.. The ditches leaving the 36"pipe over the years have filled in creating a situation where every rainy season we fill and empty at least half of the detention pond. In a big downpour, more likely 60%or 70%of the detention pond will temporarily fill. The system is historically in place and is functioning presently. It is regrettable that it was missed on the original Boyle Engineering Report on the area watershed. It appears that all of staff's work was based upon this incomplete and inaccurate report. All we ask it to get it right. Correct the omission, study and quantify the best use of this resource, and the options for everyone its documentation will allow. The detention system is large enough to be used and benefited by more than Chevron or the other involved property owners. Just because it was originally missed is no reason not to look into what we have. V: OPPORTUNITIES FOR EVERYONE With minimal effort and no cost to the public a 12 to 15 acre wetland could be created as well as a 60 to 100 acre feet of water detention. The ditch could easily be re-routed so as not to compromise the two industrial lots it bi- sects and to give control over drainage to either keep only a 3 acre mudhole or enjoy a much larger pond that would naturally evolve into a wonderful & highly desirable wetland (especially a wetland away from roads and people!). VI. CONCLUSION Please help us and everyone: 1. Do not attempt to annex in mass Suburban Road/ Horizon Lane until all these and other property owner's issues are explored, defined, and resolved. 2. Direct staff to reconsider the taking they have done on two industrial lots by renaming ditches to creeks without any actual surveys, reports, hearings, notices and due process for the affected property owner. The annexation as currently schemed will give us no recourse except the legal system, and this is not in anyone's interest. II 3. Delay the annexation of our property until we can get a level lot through the county process that we are already into. Hopefully the detention pond and drainage system can also be accurately characterized. Please do not rush this portion of the annexation process. If its worth doing, it's worth doing fairly and honestly, not by grouping properties so owners have no rights, and not by doing"taking" of real property byre-naming a man-made drainage and detention system into "creeks". Sincerely, Richard W. Ferris 4080 Horizon Ln. P.S. We are already in the process with the county of putting the ditch in a pipe and leveling our lot for a storage yard. Once we are able to put the ditch into a pipe or otherwise re-route it, when we build our warehouse wewill gladly build it in with the city. NY C' 'NT V06 F(-( All-1)(wl Aiv;i 0 Plumbing on a Grand Scale r New sewer main ptlillping sUlLion New water main Bridge replacement waterwayTankFarmRd Abandon waterway Aii-poi-t Area 11- 04 01`,SLorni drain pipe Natural chnimel not ill shown) V) tp L_ L Btleldev Rd SLorinwater holding pondX Crecks are far more than drainage plumbing, but this nial)emphasizes their role in cm-r%ing storm runoll. Show me your impacts... and don't forget the alternatives." You've probably heard of "E"IR's." Ali The EIR looks at three basic alternatives. Mey assessEnvironmentalImpactReportmustbewrittendifferentwaystodealwithtwodifficultsituations: whenever the City proposes an action, and 1'()"IllillglogicalalillexaLioiibouiidai-icsifasdesii-edbysomeonecanmakeafairargumentthatsignificanttheCountyBoardofSupervisors, the County-ownedellVil-011iliCiltal harm could result. The EIR must be airport property is not included, and acknowledging•made available for comment by the public and that the County has designated more land forinvolvedagencies.The City must prepare responses commercial and industrial use, outside the City'stocomments. Then the LIR Must be considered urban growth boundary and the defined Airport Area.and accepted by the ultimate decision-makers, ill this Case the City Council, before Llicspecific plan is Very briefly, L lical tern I Lives are: adopted. ' 0 Dont annex the airport property, or land Cast,Because environmental factors played I major south,orwesLof theah-pol-L. role in drafting the specific plan, most measures to avoid Or compensate for adverse impacts have been Don't annex the airport property,but bring in hind written into it. The EIR discusses these features. to the cast and south; I-Lill the Prado Road Another important- jobfor the EIR is to assess extension diagonallydown LoTajikFarm Road. alternatives. How might different versions of the 0 Don't annex the air.port property,but bring in landspecificplanaffectthingslikewatersupplyzinc] to the east,south,and west;extend Los Osos Valleyquality, traffic, wildlife habitat, views, and Road to the intersection of Tank Farm Road andfarniland? Broad Street. The draft EIR is available at tile City library and the Cal Poly library, and at City Hall. (A paper The City Council will decide whether the proposed COPY Costs $20, plus $4.50 if mailed; a CD specific plan, an alternative,or some combination will including the specific plan costs $10, plus $2 if be adopted, after considering the EIR and holdingmailed.)The initial Comment period is expected to publichearings. close near the end of April. Colilincilts or (tucs Lions abouL this newsletter, or other Airport Area Specific Plan i Wills? Contact Glen Matteson in the Community Development Department at City Hall, 990 Palni Street (Lip Code 93401-32z19). Our department P11011C 11111111)cl' is 80S 781-7170. 13-mail: LO e e.mac m o-e a oe -, E.. , i e :; 3 ' 9 •8 a f m p 0 rs C i 1 r l V. b • l 4 pg v •g d L io i a 3c a t`'V ' •"'°+ '?' w a 'G +q - Kyp r sa nlFa"'Yq"'4'r r ` t+,, R -,s'. Vw v. tr a cg. h` , ry } , p} yw.o?,. v..Y,. N Fpb'..r,` « f>•rt^"'$,xrSy-t .] 1, qf''. t `, HLI c . 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Yi i d ri4' a-G'''d S 4 'r Rs"i! a ! k Y1 a ! a r # r h y wasM1 rl a14 i n.l`yl.+ Tws e 9't57" c 'yr r ' r,(>.fFRu f r C j'r! t- yy v$ fR4 ;J 3F>'q r Y# K%(+ 1 t f..•.9L t 1 r.r YG* i• ' a:e"'_6, A y' J r c } ' " }r 9pa 1y'fi c-r-.l i +C H yp 4nr 4's r •" • r'^ 5x_CYr a a {., y S C _ i' rr''k' tr Tk •`2"'.{ Ft':A; r. ` s f I tl V 2005 t 0e Jd y:'y el Codron City of San Luis Obispo10t; 3 9r s,Qd b d mmunity Development Dept 0 Palm Street do d6 9A X90 an Luis Obispo, CA 93401 Dear Nfichael - 4V m I write this letter regarding the airport area specific plan. Jan 2005 public review draft; in section 3-3 under"creeks" the document refers to the man made drainage ditche that reside on the west side of the planning area. The document appears to be taking a huge shortcut and an even larger rte. presumption in renaming this series of drainage ditches: as Tank Farm Creek. As you know a man made drainage ditch such as Tank Farm's are not creeks. If you are going to be sneaky and attempt to classify a ditch as a creek much more is arz: necessary. As we all know a ditch does not have set backs or other special environmental ' restrictions that come with being a creek. If it is the intention of this document to do a taking of our property on either side y, of our ditch by simply re-naming the ditch as a creek I hereby formally strenuously object!!! r If these ditches are to be re-classified into creeks than a whole separate procedure and separate hearings are in order. Such a large taking without due process is wrong and should not be allowed. I trust you will revise the document at 3:3 to include such words as necessary to j clearly note that man made drainage channels do not equal a creek. In so far as planning and long use restrictions. Please respond to this concern in writing by April 15'', so I can have my concerns put to rest. Thank you for your assistance in this matter. If you have any questions or wish to:, speak to me please feel free to call, or email. Sincerely, Ri hard W Ferris Pro Owner Horizon Lane 805) 543-3636 rferris@SDRS.biz J . Original letter sent 3/30/05 Second Mailing Return Receipt F w J v w 2 4 clues- -- -- ---- a w ti V4;;V m t 1 LZ 30 O i.........N p rtn140O D' t C to I -I a ev a 3 cr c A W YJ v o c7 v c c 'Uv N 7 N O t N ryH m w 1 4 3 0 N N O CU lamZ i 3 d I a mot oma` n? J y1 z rn u`c°» ALL VVR-6 1OF F)60 AG o I'll,LA N!,)1-lrq(LUO ZONE C fANK I ARM ROAD V NE A, Slo Orched Channel 112 ZONE 411 RUADlluV'IlyC( — OUNT TAIRPORT_- i.-EVANS— FIRM FOOD INSURANCI PATE MAP Last Bruach REVISED iiREA San;xis Obisno Creek SA.'.V LUIS 01SPO COUNTY, per- CALIFORRIA UNUMORPORAT-.10 AREAS) PAA:EL 625 [IF -375 ifsZONE1z DIAMUNITY-PAKEL NUMBER E60304 0025 C MAP REVISED C SCALE IN rt E113LEGEND0000 2000 I1..1011--Yo tr Hoodplain 1:--- P-1 blanesc=nI Aycstc; I o r. U- J O r 'N• 1 Y T U O := N N _ ' C Oa. G •-J p v' v", c`.n 1 ^ O Q u `' U •"_' i. b7q =`. _ r O L v C OUr a,1 U O O th i. .v- CV y 1i Ij- - EllIJ J fes ` Z ED v v C uIQO v Z f u ^1 y bfi N v O ^ J J L ^ J j W Y G.s y y .n 'C n .. - _ o Q J C y v "O y' 1.O 'C ._ ,. L ;U D r y .. h L p C CID • K L v IJ Y ^7 v s O N % V J ! r, C O bIJ j p L — F L 'J , J, • N r^- N (]. . O O v L ,•= •^ O JQ V ( L r. U O ,• L , v 'n _ – LL Q p " y' C y tn J 0 V CL L"J LL. LL n b,A. O J •n Z L v V Olu Q o- _ - ^ W _v YO : L2i [1J 'J Fm I'." u C v N v vN 'J n L ^y O o!i C LL ; c v o r ° w a S -C 2 v o ° bfi L v CN M1i LTrJ '> rCC .' OC Nj _.bfir` C/ A 1I•^ O yC. y y' fi N^ UUcLN^.COV O ti O C Dv v v a bb p N 11, U T. p. bf,i • u^ O C iN O O M1i O L' i rT1- l ti i, L 1 O p L C C N J -e O = O u L p C C G G t .. O r G. i. .- O 0 r ^ <' Y S E ... T ^ V .Y O O L N ' ", .' .- N ori •' Ci C L N C p .+T N F .o O '% rJ Y S r = N O v O '7 ' wn L CL v' 0 b_fJ -L=. ri L OIn cO Lt! rte_ G CI N G. V N y O O S – —_ .y % J. Y um uu lu CL vi ' O -.0 'G u Y O C v N ^ L O N r I L L •n -- O Y ti d v Y 1 7 ?' ' c7 -YC O CL 0 . L p L L A N LI L u • i, L C V V ^ L – v DL '- ' L N O U O nf'_' ^, L J _ Q l if li, - O % N U _.. N ,bfi .n `i 1 i RED FILE RECEIVED ME NG AGENDA APR 2 7 2007 DATES/1 0ITEM #WIK FARM BUSINESS PARISLO CITY CLERK P r l 249 Patricia Ct, SLO, CA 93405(805)544-3274 N 544-2914 e-mail davem3399@aol.com 4.25.07 Attention: Claire Clark, Economic Development Manager, City of San Luis Obispo RE: Response to ANNEXATION UPDATE `Phasing of Airport Area and Margarita Area Annexations to Begin with City dated Public Hearings' dated 2/5/07 from Tank Farm Property Owners Association (TFPOA) @ 202 Tank Farm Road 5 developed acres). Our review of the annexation update letter generated these comments from our property owners 1. TFPOA has developed internal utilities for this site, including water for all purposes, with 30,000 gallons of water stored, on site, for fire suppression, plus an onsite delivery system. 2. TFPOA has a septic system for all units. 3. TFPOA has drainage, fully developed, for the entire property. Based on the present SLO City fee structure and SLO City cost of connections, it is apparent that inclusion of TFBP in the city of SLO will be very expensive with little if any benefit for the property owners, and no way for the property owners to recover the costs. Additionally, we have polled all (12) tenants on the property and they unanimously prefer to stay in the county. We request that the City of San Luis Obispo ELIMINATE the 5 acre parcel at 202 Tank Farm Road from consideration for annexation. The owners see a continued happy ownership of the Tank Farm Business Paris by not including this property in the City of SLO for at least20 years, or longer. Your understanding and support of our position is appreciated. Z9A0 rz,4I 1 Dip. i Thank Yo W oAo PE CKEF HA70R ORIG NEY WW DIR rij POLICE CHF- P HF I pF HbEADS T D RI; R i Owners, 67 Dave Martindale, President, Craig Karli, Jack Foster, Joyce Sherwin Directors. Cc: Michael Codron,Associate Planner, Paul Hood LAFCO UNION UNION INC. 0 4 CONSTRUCTION • READY MIX CONCRETE - ASPHALTIC CONCRETE- AGGREGATES - TRANSPORTATION 0 o Telephone:805)922-3551 Fax: 805)922-1491 CITY OF SAN LUIS OBISPO P.O. Box 1280,Santa Maria,CA 93456 APR 2 7 2007 April 25, 2007 COMMUNITY DEVELOPMENTRECEIVED APR 3 0 2007 City of San Luis Obispo SLO CITY CLERK Community Development Dept. 919 Palm St. San Luis Obispo, CA 93401 Attn: Kim Murry Re: Annexation-Tank Farm Road area Dear Ms. Murry, Union Asphalt, Inc. is very much in favor of the proposed annexation the City of San Luis Obispo is proposing for the area that includes our ready mix batch plant at 219 B Tank Farm Rd. Most importantly, we are looking forward to the increase in service the annexation will provide. I won't be able to attend the annexation meeting, but if you have any questions, please call me at 357-2818. Sincerely Yours, rCOUNCIL CDD DIRQCAO O FIN DIR ACCFIRE CHIEFATTORNEYPWDIRCLERK/CRIG & POLICE CHFBobKoberDDEPTHEADS ?REC DIRVPRegulatoryAffairsUTILDIR Union Asphalt, Inc. 8 2 HR DIR r cc,vts.c. P G p eza fG RED FILE MEETING AGENDA DA Si o ITEM # fly UNION ASPHALT, INC. IS AN EQUAL OPPORTUNITY EMPLOYER I 1 PRICE, POSTEL & P,ARMA LLP ARTHUR R. GAUDI COUNSELLORS AT LAW OF COUNSEL JAMES H.HURLEY,JR. GERALD S.THEDE J.TERRY SCHWARTZ 200 EAST CARRILLO STREET, SUITE 400 DANIEL C.DAVID DAVID W.VAN HORNE SANTA BARBARA, CALIFORNIA SUSAN M.BASHAM PETER D.SLAUGHTER DOUGLAS D.ROSSI 93101-2190 ERIC P.HVOLBOLL CRAIG A PARTON RETIRED PARTNERS CLYDE E.WULLBRANDT KENNETH J. PONTIFEX MAILING ADDRESS P. 0. BOX 99 JOHN KERR WILSON CHRISTOPHER E. HASKELL SANTA BARBARA, CA 93102-0099 TERRY JOHN CONNERY TIMOTHY E METZINGER DAVID K.HUGHES TODD A AMSPOKER PENNY CLEMMONS MARK S. MANION TELEPHONE (805) .962-0011 MELISSA J. FASSETT OUR FILE NUMBER AN M.FISHER FACSIMILE (805) 965-3978 ANTHONY W. BAGNETTE 21317.2 SMEREEF MOHARRAM RED FILESAMZODEM JENNIFER K.HANRAHAN KRISTIN M. R.BLABEY R E C E I V L JLESLEYE.CUNNINGHAM MEETING AGENDA DA i u ITEM # 30, 2007 MAY U i 20U 1 SIA CITY CLERK BY EMAIL: slocitvcouncilaslocity.org Mayor Dave Romero and Council Members City of San Luis Obispo COUNCIL CDD DIR 990 Palm Street 1E CAO L71"FIN DIR San Luis Obispo, CA 93401-3249 IFACAO 9 FIRE CHIEFITARN5?PW DIRRICERWOR140POLICE CHFRe: Annexation Proposal.—Airport Area DEPT EADS 0 REC DIR Dear Mayor Romero and Council Members: 2 LITIL 3 HR [)IR oaneuG 1Gl39V . We represent Hanson Aggregates Mid-Pacific, Inc., which owns a seven-acre parcel ,6 C GEIfuC located at 131 Suburban Road (APN 076-352-025). Hanson's property is near the westerly boundary of the Airport Area proposed for annexation to the City. We understand that your Council will be considering the annexation proposal at your meeting on May 1,2007. For reasons we will explain, Hanson currently is opposed to the inclusion of its property in the annexation area. However, if the Council votes to approve the application to LAFCO for annexation of this area, Hanson is willing to work with the City to try to resolve its concerns before LAFCO commences its process. Hanson has not participated in the City's review of the annexation proposal before now because it was not receiving notices of public meetings. The City's notices apparently were going to the wrong address. While that error has been corrected,Hanson has been left with little time to raise and try to resolve concerns about the impacts of annexation on its property. Hanson operates a cement batching plant at its Suburban Road site. Hanson selected this property as an industrial site because it was a reasonable distance from the urban area and would not be likely to conflict with urban initiatives. However, the pressure for urban development has changed that situation, and a large area ringing Hanson's property to the east and south is slated for non-industrial uses. Annexation promises a future where Hanson's cement plant will become an unattractive neighbor for other types of uses. While proposed City zoning makes this cement plant use conforming, the fact that the use is permitted does not provide any assurances that the v Mayor Dave Romero and Council Members April 30, 2007 Page 2 business can grow or adapt to changes in its industry without confronting insurmountable hurdles. Hanson does not want to be put in a position where the City's desire to see residential and commercial development.in the area will make Hanson's plant a`white elephant." Hanson needs protections for the continuation of its business into the future. We understand that your Council has authorized certain "pre-annexation agreements," setting forth certain understandings about the future of particular sites. As attorneys, we think that Hanson will be best served by a development agreement pursuant to California Government Code sections 65864-65869.5. However, we will consider your form of"pre-annexation agreement" as an alternative if the City is willing to offer such an agreement to Hanson. Hanson recognizes that the proposed annexation of the Airport Area is widely supported and it does not want to be a "hold-out" where most other property owners in the area are comfortable with the concept of annexation. However, because of its unique circumstances, Hanson cannot offer its support for the annexation at this time, and will remain opposed until it receives necessary assurances of its future development rights. We plan to attend your hearing and will be glad to answer any questions you may have at that time. Thank you. Very truly yours, air", Susan M. Basham for PRICE,POSTEL&PARMA LLP SMB:lkh cc: Marvin Howell,Hanson Aggregates f s I i 4/30/07 245 TANK FARM ROAD UNIT PHONE:805543-2682 SAN Luis OsisPo,CA 93401 FAx:805543-0447 EMAIL:FRANKUNREALTY@AOL.COM r RECEIVED RED FILE P•liar 01 i '7 City of San Luis Obispo MEETING AGENDA I SL.O CITY CLERK 9 490PalmStreetT01TEM # San Luis Obispo, Ca. 93401 Re; Airport Area Annexation Dear: Distinguished Council Members L I This letter is in referance to the 620 acres in the Margarita Area and Airport Area. I represent an area of approximately 7.2 Acres in the Airport Area of this proposed annexation half of which is fully developed and half, which is not. Under the current plan, half of the property would be zoned CS-SP and half M-SP. They are connecting parcels and need to be tied together and should be i zoned the same. The properties currently developed in the County Airport Area are home to the majority of small manufacturing companies in the San Luis Obispo Area. I It would not make sense to have most of these type businesses to be operating in j the City of San Luis Obispo, some of which, would not be allowed to operate in the City of San Luis Obispo. All property owners who have existing tenants would not be able to operate for very long with non-conforming uses throughout their development. The potential for new tenants with existing old non-conforming tenants is not a good business plan and should not be thrust upon current property owners. The County has not addressed the utility situation for existing property owners who do not need further utilities. It would be in the best interest for all property owners to let the development of properties decide who needs to be and who does not need to be in the City. Therefore, I do not support the Phase One Annexation at this time. i Garry Hol afer II OUNCI TCDD DIR rl A0 ETFIN DIR 3 ACAO FIRE CHIEF 7/ M gmg Partnerr ATTORNEY .2 PW DIR oldgrafer & Associates CLEAK/ORIG 27POLICE CHF p\\ DART EA D5 6REC DIRnRI DIR IR ti i j iAll 1 Page 1 of 1 Coundl,SloCity From: Pearce Family[cpearce@impulse.net] Sent: Tue 5/1/2007 7:10 AM To: Council,SloCity Cc: Clint Pearce EREED Subject: Airport area annexation 2007 Attachments: Good morning honorable Mayor and Council members, LERK I'm writing you on behalf of Madonna Enterprises and one of our business partners, Sports Warehouse owner of Tennis Warehouse, Running Warehouse and related companies. Tonight you will be considering the Airport Area Annexation and its boundaries and my request is for the Council and City to consider the way businesses are taxed by the City for the benefit of services. It's my belief that if the City would create more flexibility in the tax structure it would make a more business friendly economy and help the City retain more businesses in the City and attract new ones. For the purposes of this email I will focus on the business tax. It's my understanding that the business tax is charged at a flat fee of$.50 for every$1,000 of sales a company makes. This creates inequity for businesses that generate lots of sales and to illustrate this I'll use the following example. Lets say there's two businesses that are neighbors both doing business on the same street in the City. The first has 100 employees and generates$5,000,000 in annual sales and thus would pay$2,500 in business taxes to the City. Their neighbor also has 100 employees but due to the nature of their business they generate$50,000,000 in annual sales and thus pay 25,000 in business taxes. Both businesses use about the same amount of Police and Fire protection, infrastructure etc. In fact the second company is generating a lot more sales tax for the City then the first. The cost to benefit is 10 times more for the second company then the first. It would be helpful for businesses if the City could find alternative ways of charging and formulating tax so the cost benefit is more equal. Possible ideas may include a cost per employee or a sliding scale; as sales increase the tax decreases per dollar of sales. Thank you for taking the time to read this; I realize you won't be deciding on how to tax businesses tonight but if the annexation goes through, the City and businesses will soon be negotiating pre-annexation agreements. It would be a big help if businesses could see a more equitable cost benefit to doing business in the City through a flexible customized approach to taxing versus a one size fits all that penalizes large sales generators. rq FCOUNCIL CDD DIRThankyou, ZXO FIN DIR FIRE CHIEF Clint Pearce pW pIR REDFIDE5POLICECHFMEETINGAGENDMadonnaEnterprisesRECDIR UTIL DIR DATES o ITEM qf/ HR DIR P (rGI.GvCl. o Crf.G https:Hmail.slocity.org/exchange/slocitycouncii/Inbox/Airport%20area%20annexation.ENIL,?Cmd=open 5/1/2007 Reference 11 Reference 12 US Army Corps of Engineers Sacramento District 1325 J Street Sacramento, CA 95814-2922 Maintenance Exemption Summary Maintenance (Including Emergency Reconstruction) Pursuant to Section 404 of the Clean Water Act (33 USC 1344) and Federal Regulations (33 CFR 323.4(a)(2)), certain discharges for the maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures, have been exempted from requiring a Section 404 permit. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption. A Section 404 permit is required if either of the following occurs: (1) Any discharge of dredged or fill material resulting from the above activities which contains any toxic pollutant listed under Section 307 of the Clean Water Act shall be subject to any applicable toxic effluent standard or prohibition, and shall require a permit. (2) Any discharge of dredged or fill material into waters of the United States incidental to the above activities must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. For example, a permit will be required for the conversion of a wetland from silvicultural to agricultural use when there is a discharge of dredged or fill material into waters of the United States in conjunction with construction of dikes, drainage ditches, or other works or structures used to effect such conversion. A conversion of a Section 404 wetland to a non- wetland is a change of use of an area of waters of the United States. A discharge which elevates the bottom of waters of the United States without converting it to dry land does not thereby reduce the reach of, but may alter the flow or circulation of, waters of the United States. If the proposed discharge satisfies all of the above restrictions, it is automatically exempted and no further permit action from the Corps of Engineers is required. If any of the restrictions of this exemption will not be complied with, a permit is required and should be requested using ENG Form 4345 (Application for a Department of the Army permit). A nationwide permit authorized by the Clean Water Act may be available for the proposed work. State or local approval of the work may also be required. For general information on the Corps’ Regulatory Program please check our web site at www.spk.army.mil/regulatory.html. For additional information or for a written determination regarding a specific project, please contact the Corps at the following addresses: Sacramento Main Office-1325 J Street, Room 1480, Sacramento, CA 95814 (916) 557-5250 Redding Field Office-152 Hartnell, Redding, CA 96002 (530) 223-9534 Reno Office-300 Booth Street, Room 2103, Reno, NV 89509 (775) 784-5304 Intermountain Region Main Office-533 West 2600 South, Suite 150, Bountiful, UT 84010 (801) 295-8380 Colorado/Gunnison Basin Office-402 Rood Ave., Room 142, Grand Junction, CO 81501 (970) 243-1199 Durango Office-278 Sawyer Dr., Unit #1, Durango, CO 81301 (970) 375-9506 Frisco Office-301 W Main, Suite 202, P.O. Box 607, Frisco, CO 80443 (970) 668-9676 St. George Office-321 North Mall Drive, Suite L-101, St. George, UT 84790 (435) 986-3979 Updated OCT 2005 Reference 13 An Analysis of the Geographic Extent of Waters of the U.S., Including Wetlands at the Chevron Tank Farm Facility, San Luis Obispo, California August 5, 2008 Prepared for: Chevron EMC San Luis Obispo, California Prepared by: Padre Associates, Inc. 811 El Capitan Way, Ste. 130 San Luis Obispo, CA 93401 and WSP Environment & Energy Ecosystem Science & Natural Resources Management Services 2324 Eastlake Ave E, Suite 505 Seattle, WA 98102 Appendix C: Biological Resources C.8-1 Chevron Tank Farm EIR i DISCLAIMER Padre Associates and WSP Environment & Energy (hereafter, “WSP/Padre”) have prepared this waters/wetlands delineation report for use by Chevron EMC. The results and conclusions of this report are conditional upon final approval by the U.S. Army Corps of Engineers, the California Department of Fish and Game, United States Fish and Wildlife Service, and the Central Coast Regional Water Quality Control Board. Results and conclusions presented in this report are based upon information available in the public domain (e.g. U.S. Geological Survey 7.5’ topographic quadrangle maps, the Natural Resources Conservation Service Soil Surveys, and air photographs from various sources), and on the WSP/Padre technical team’s on-site reconnaissance, data collection, and analyses by standard methods. Results and conclusions presented herein represent the best professional judgment of Padre Associates and WSP Environment & Energy technical staff. In this context, surveying/boundary locations developed by Padre Associates are assumed to be true and correct. Eric Snelling Senior Project Manager Padre Associates, Inc. Date Lyndon C. Lee, Ph.D., PWS Principal Ecologist & Vice President Ecosystem Science & Natural Resources Management Services WSP Environment & Energy Date Appendix C: Biological Resources C.8-2 Chevron Tank Farm EIR ii Table of Contents EXECUTIVE SUMMARY ..........................................................................................................1 I. INTRODUCTION & BACKGROUND ..............................................................................3 II. OBJECTIVES........................................................................................................................ 4 III. OVERVIEW OF SITE CHARACTERISTICS..................................................................5 A. Current and Historic Land Uses...........................................................................................5 B. Geomorphology and Landscape Context.............................................................................5 C. Climate and Growing Season...............................................................................................6 1. Climate ........................................................................................................................... 6 2. Growing Season ............................................................................................................. 6 IV. METHODS............................................................................................................................. 7 A. Rationale for the determination of the geographic extent of waters of the U.S., including wetlands...................................................................................................................................... 7 B. Consistency with SWANCC & “Rapanos” Guidance .........................................................7 C. Office Methods & Review of Background Materials .......................................................... 8 D. Field Delineation Methods................................................................................................... 8 1. Delineation Team Members...........................................................................................8 2. Field Review and Verification of Other Delineations, Sample Plot Locations, and Data Documenting Site Conditions ....................................................................................8 3. Hydrology....................................................................................................................... 9 4. Soils................................................................................................................................ 9 5. Vegetation .................................................................................................................... 10 V. RESULTS............................................................................................................................. 11 A. Geographic Extent of Waters of the U.S., Including Wetlands..........................................11 1. Summaries of Previous Consultants’ Reports..............................................................11 2. The WSP/Padre Delineation.........................................................................................13 B. Hydrology........................................................................................................................... 14 1. Landscape-Scale Mapping ........................................................................................... 14 2. Site Specific Mapping and Hydrologic Processes........................................................14 C. Soils.................................................................................................................................... 17 1. Natural Resources Conservation Service Mapping & Other Studies...........................17 2. WSP/Padre Observations ............................................................................................. 17 D. Vegetation .......................................................................................................................... 18 1. General Description of SLO Tank Farm Vegetation....................................................18 2. Wetland Classes ........................................................................................................... 20 VI. REGULATORY CONTEXTS ...........................................................................................22 A. Federal Jurisdiction ............................................................................................................ 22 1. Clean Water Act (CWA), Section 404..............................................................................22 2. Clean Water Act, Section 401...........................................................................................22 3. Clean Water Act, Section 402...........................................................................................22 Appendix C: Biological Resources C.8-3 Chevron Tank Farm EIR iii 4. Endangered Species Act, Section 7 (U.S. Fish and Wildlife Service)..............................23 5. National Historic Preservation Act (NHPA), Section 106................................................23 B. California State................................................................................................................... 23 1. Clean Water Act (Water Quality Certification), Section 401...........................................24 2. Porter-Cologne Water Quality Act...................................................................................24 3. Clean Water Act, Section 402...........................................................................................24 4. Stream Bed Alteration – Section 1600 Series Permit ....................................................... 24 5. California Environmental Quality Act (CEQA)...............................................................25 6. National Historic Preservation Act, Section 106 ..............................................................25 7. Regional Water Quality Control Board (RWQCB) (CWA 401)......................................25 8. California Coastal Commission (CCC) ............................................................................25 C. Local Jurisdiction - San Luis Obispo County ....................................................................25 VII. LITERATURE CITED ..............................................................................................26 List of Tables Table 1. Delineations of Waters of the U.S., Including Wetlands Conducted at the Chevron Tank Farm, San Luis Obispo, California Table 2. Waters/Wetland Areas Removed, Adjusted, or Added Based on 2007-2008 Field Observations by WSP/Padre Technical Team, Chevron Tank Farm, San Luis Obispo, California Table 3. Criteria for Hydric Soils of the United States Table 4. U.S. Fish & Wildlife Service Plant Indicator Status (Reed 1988) Table 5. Summary of the Distribution of Waters of the U.S., Including Wetlands and Other Wetlands Features List of Figures Figure 1. Chevron SLO Tank Farm Project Site Location, San Luis Obispo, California Figure 2. Aerial Image of Chevron SLO Tank Farm Project Site Figure 3. Waters of the U.S., Including Wetlands, Mapped by Winfield (2001) Figure 4. Distribution of Protected Plant and Animal Species within Waters of the US, Including Wetlands Figure 5. Waters of the U.S., Including Wetlands Figure 6. HGM Wetland Classes Figure 7. The Central Coast Hydrologic Region and San Luis Obispo Hydrologic Subunit Figure 8. Storm Water Catchment Areas (Source: Avocet Environmental, Inc. 2008) Figure 9. Water Flow Directions among Waters/Wetlands Figure 10. Mapped Soils for the SLO Tank Farm Project Site Appendix C: Biological Resources C.8-4 Chevron Tank Farm EIR iv List of Photographs Photograph 1. SLO Tank Farm project site is primarily open space. This photo looks southwest across wetland feature #83 (Reservoir 3) toward a line of trees along the East Fork of San Luis Obispo Creek. Photograph 2. SLO Tank Farm project site looking eastward along the northern edge of the North Marsh. Cattle graze throughout the majority of the property. Photograph 3. Much of the SLO Tank Farm project site is dominated by non-native forbs and grasses. Photograph 4. Oxbow located in the south eastern portion of the site is dominated by scrub/shrub and forested plant communities. Photograph 5. The East Fork of San Luis Obispo Creek is dominated by scrub-shrub or forest communities along part of the reach within the Chevron SLO Tank Farm project site. Photograph 6. Depressional wetland (#37) in old tank footprint. Non-native dominants including cocklebur (Xanthium strumarium) are in the foreground. Photograph 7. North Marsh/ Tank Farm Creek slope/ riverine wetland complex at the SLO Tank Farm project site. Photograph 8. Depressional wetland features such as those in foreground persist as a result of the SLO Tank Farm project site’s long history of ranching and industrial development. Photograph 9. The highest elevations on the SLO Tank Farm project site are in the northeastern portion. The slope grades generally southward and onto valley alluvium. Photograph 10. Tank Farm Road bisects the SLO Tank Farm project site. Two sets of culverts convey water southward. Photograph 11. The old crude oil reservoirs were lined with various materials, and berms were installed around their perimeters to contain oil if necessary. Photograph 12. Berms that show the legacy of soil and hydrologic disturbance are present throughout the SLO Tank Farm project site. Many of these berms are remnants of historic reservoirs. Photograph 13. Cattle graze across the majority of the SLO Tank Farm project site. Note ponding in foreground. Photograph 14. East Fork of San Luis Obispo Creek at the SLO Tank Farm. Native California walnuts (Juglans californica var. californica) are not infrequent along the adjacent riparian corridor. Photograph 15. East Fork of San Luis Obispo Creek at the SLO Tank Farm. View looking north. Photograph 16. Old water control structure in Tank Farm Creek, upgradient of the North Marsh. Photograph 17. Tank Farm Creek in winter 2007 at the SLO Tank Farm project site. Photograph 18. North Marsh at SLO Tank Farm project site (April 2008). Note dominance by native rushes (Juncus spp.) and bulrush (Schoenoplectus spp.). Appendix C: Biological Resources C.8-5 Chevron Tank Farm EIR v Photograph 19. Twin concrete culverts under Tank Farm Road. Photograph 20. Headworks at south end of wetland #98 infrequently connect the southern extent of the SLO Tank Farm site with the East Fork of San Luis Obispo Creek. Photograph 21. Ponding was observed in Reservoir 6 (Wetland #45) in January 2008. List of Appendices Appendix A – Correspondence between EDAW and NRCS (1999) Appendix B – Arid West Manual datasheets Appendix C – Resumes of Principal Scientists Appendix D – Location and Areal Extent of Waters/Wetlands Under Federal Jurisdiction Appendix C: Biological Resources C.8-6 Chevron Tank Farm EIR 1 EXECUTIVE SUMMARY In July of 2007, WSP Environment & Energy (WSP) was requested by Chevron Environmental Management Company (CEMC) to assist Padre Associates, Inc. (Padre) with identification and delineation of the current geographic extent of waters of the U.S., including wetlands under Clean Water Act (CWA) jurisdiction (hereafter “waters/wetlands”) on the San Luis Obispo Tank Farm (hereafter “SLO Tank Farm”) project site. Union Oil Company owns the 340-acre tank farm property. It is located immediately south of the city of San Luis Obispo, in San Luis Obispo County, California. SLO Tank Farm abuts East Fork of San Luis Obispo Creek, which is a tributary to the Pacific Ocean; it lies outside the designated “Coastal Zone” in San Luis Obispo County. This report has been developed by the WSP/Padre team using (1) current U.S. Army Corps of Engineers (hereafter “US ACOE”) and U.S. Environmental Protection Agency (hereafter “EPA”) guidance concerning jurisdictional delineations, and a (2) combination of 2007-2008 field-based observations of site conditions at the SLO Tank Farm and consideration of several previous waters/wetlands identification and delineation studies at the SLO Tank Farm site. These earlier studies were completed by other consultants to either Unocal or Chevron EMC during the interval 1999 to 2003. Information offered in this report is arranged to (1) describe the delineation objectives, (2) introduce and describe briefly the contexts and results of prior delineations on the SLO Tank Farm property, (3) explain the approach and methodology used by the WSP/Padre team in this delineation, (4) provide technical results, and (5) discuss pertinent regulatory contexts and issues at the federal, state, and local levels of jurisdiction. The three main objectives for this effort are as follows: 1. Delineate the geographic extent of waters/wetlands within the San Luis Obispo Chevron Tank Farm project area consistent with definitions provided in CFR 33 328.3 (a)(1-8), 328.3 (b, c, and e) (Federal Register 1986), and procedures detailed in the 1987 Manual (Environmental Laboratory 1987) and in the Arid West Regional Supplement (US ACOE 2006) as implemented with pertinent regulatory guidance letters, memoranda, and public notices. 2. Summarize the regulatory context of waters/wetlands within the project area, paying particular attention to current federal, state of California, and San Luis Obispo County regulations and policies. 3. Work with the US ACOE and California State and San Luis Obispo County regulatory agencies to review and certify the delineation. The WSP/Padre field team delineated one hundred three (103) polygons on the SLO Tank Farm project site. WSP/Padre determined the classification of waters/wetlands on the project site consistent with the hydrogeomorphic types described by Brinson (1993) and Brinson et al. (1995). Delineation results were reviewed and given preliminary approval in the field on June 9, 2008 by Mr. Bruce Henderson, Los Angeles District, US ACOE. As always, the results and Appendix C: Biological Resources C.8-7 Chevron Tank Farm EIR 2 recommendations offered in this report are subject to final review and approval by the US ACOE. At the June 2008 field review, Mr. Henderson determined that of the 103 waters/wetlands polygons mapped by the WSP/Padre team, 38 are wetlands per se and under federal CWA jurisdiction. Their combined area is 49.0 acres. Another six polygons are otherwise called “’other waters’ of the U.S.” Their combined total area is 3.9 acres. Therefore, total area of waters/wetlands under federal CWA jurisdiction at the SLO Tank Farm project site is 52.9 acres. Forty-four (44) polygons mapped on the SLO Tank Farm project site are not under federal CWA jurisdiction because they are isolated depressional features that either have (1) no connection with, or adjacency to, traditionally navigable waters, and/or (2) no significant nexus with interstate commerce or maintenance of the physical, biological, or chemical integrity of downstream waters. However, these wetland features support special status species that are protected at federal and/or state levels of jurisdiction. Total area of waters/wetlands not under federal CWA jurisdiction, but which do support special status species is 15.8 acres. Finally, fifteen (15) wet depressional features mapped on the SLO Tank Farm site do not support any special status species. Their combined total area is 3.4 acres. Appendix C: Biological Resources C.8-8 Chevron Tank Farm EIR 3 I. INTRODUCTION & BACKGROUND In July of 2007, WSP Environment & Energy (WSP) was asked by Chevron Environmental Management Company (CEMC) to assist Padre Associates, Inc. (Padre) with identification and delineation of the current geographic extent of waters of the U.S., including wetlands, under Clean Water Act (CWA) jurisdiction (hereafter “waters/wetlands”) on the San Luis Obispo Tank Farm (hereafter “SLO Tank Farm”) project site. Union Oil Company owns the 340-acre tank farm property. It is located immediately south of the city of San Luis Obispo, in San Luis Obispo County, California (Figures 1 and 2). The SLO Tank Farm abuts East Fork of San Luis Obispo Creek, which is an infrequently intermittent to perennial tributary to the “traditionally navigable waters” of the Pacific Ocean. SLO Tank Farm is not within the designated “Coastal Zone” in San Luis Obispo County as designated by the California Public Resources Code Division 20, §§30000 – 30012. In this report, the WSP/Padre technical team provides results of their delineation effort. These results were reviewed and given preliminary approval in the field on June 9, 2008 by Mr. Bruce Henderson of the Los Angeles District of the U.S. Army Corps of Engineers (hereafter “US ACOE”). As always, the results and recommendations offered in this report are subject to final review and approval by the US ACOE. This report has been developed by the WSP/Padre team using (a) current US ACOE and U.S. Environmental Protection Agency (hereafter “EPA”) guidance concerning jurisdictional delineations, and (b) a combination of 2007-2008 field-based observations of site conditions at the SLO Tank Farm and consideration of several previous waters/wetlands identification and delineation studies at the SLO Tank Farm site. These studies were completed by other consultants to either Union Oil or CEMC during the interval 1999 to 2003. The information offered in this report is arranged to: (1) describe the delineation objectives, (2) introduce and briefly describe the contexts and results of prior delineations on the Chevron Property, (3) explain the approach and methodology used by the WSP/Padre team in this delineation, (4) provide technical results, and (5) discuss the pertinent regulatory contexts and issues at the federal, state, and local levels of jurisdiction. Appendix C: Biological Resources C.8-9 Chevron Tank Farm EIR 4 II. OBJECTIVES The three main objectives for this effort are as follows: 1. Delineate the geographic extent of waters/wetlands within the SLO Tank Farm project area consistent with definitions provided in CFR 33 328.3 (a)(1-8), 328.3 (b, c, and e), and procedures detailed in the 1987 Manual (Environmental Laboratory 1987) and in the Arid West Regional Supplement (US ACOE 2006) as implemented with pertinent regulatory guidance letters, memoranda, and public notices. 2. Summarize the regulatory context of waters/wetlands within the project area, paying particular attention to current federal, state of California, and San Luis Obispo County regulations and policies. 3. Work with the US ACOE and California State and San Luis Obispo County regulatory agencies to review and certify the delineation. Appendix C: Biological Resources C.8-10 Chevron Tank Farm EIR 5 III. OVERVIEW OF SITE CHARACTERISTICS A. Current and Historic Land Uses The SLO Tank Farm is owned by the Union Oil Company. Storage facilities and supporting infrastructure were constructed in 1910 to serve as the tidewater accumulation point for the petroleum pipeline from the San Joaquin Valley. The tank farm facility was withdrawn slowly from Union Oil operations during the later decades of the twentieth century, and by the late 1990s, it was formally decommissioned (Avocet Environmental 2007). With the exception of a small area of office buildings that serves as the local headquarters for CEMC west coast, the SLO Tank Farm site primarily is open space (Figure 2, Photographs 1 and 2). For the past several decades, tank farm lands have been leased for cattle grazing for the purposes of fire and weed control. Adjacent land uses include the San Luis Obispo County Airport to the south, and light commercial and industrial developments, agricultural and pastoral land with scattered residences, and a trailer park to the east. At the SLO Tank Farm, topography, soils, and vegetation have been altered considerably through plowing and disking, catastrophic fire, grazing of domestic livestock, construction and removal of oil storage tanks and their surrounding berms, stream channelization, construction of water and oil management and containment systems, and several other anthropogenic alterations. Currently, most of the SLO Tank Farm is dominated by non-native species of forbs and grasses (Photograph 3). However, some scrub/shrub and forested plant communities occur in wet depressions or within riparian corridors associated with East Fork of San Luis Obispo Creek and its tributaries (Photographs 4 and 5). Waters of the U.S., including wetlands, in the forms of riverine, depressional, and small slope ecosystems are prominent throughout the SLO Tank Farm (Photographs 5, 6, 7 and 8). Many of the waters/wetlands on the property are associated with natural features such as swales, small riverine channel systems, or depressions. However, some of the depressional and slope wetlands are associated with human-made depressions that remain after decommissioning of oil storage facilities (Photographs 1 and 6) or after various mining or domestic livestock management operations (Photograph 8). B. Geomorphology and Landscape Context The SLO Tank Farm is located in a geologically complex and seismically active region. The underlying geologic structure has been formed during millions of years of folding and faulting as the Pacific plate moves north along the North American plate. Geologic structure in this landscape is oriented primarily in a northwesterly direction with the coast range. From the perspective of surficial processes and landforms, the SLO Tank Farm is located in a coastal basin that is partially filled with late Pleistocene and early Holocene alluvium (Figures 1 and 2). The northern portion of the site is characterized by a slope/riverine wetland complex that serves as the headwaters of a small, unnamed tributary (locally known as “Tank Farm Creek”) of East Fork of San Luis Obispo Creek. This tributary has been mostly disconnected from East Fork of San Luis Obispo Creek due to historic road construction, water and oil management Appendix C: Biological Resources C.8-11 Chevron Tank Farm EIR 6 operations, and other anthropogenic activities. Underlying geology of the north half of the SLO Tank Farm site includes a colluvial toe slope near the northern property boundary that grades generally south and onto valley alluvium (Photograph 9). Alluvial soils dominate the central and southern portions of the site. The valley alluvial surfaces are approximately 8,000 -10,000 years old while the colluvial toe slope on the northern property boundary is a somewhat older surface. The extreme southern potion of the SLO tank Farm site, generally on the southern property boundary, has been shaped by the East Fork of San Luis Obispo Creek channel system as it has alternatively incised and migrated back and forth across the basin floor (Figure 2). C. Climate and Growing Season 1. Climate The San Luis Obispo area has a mild, Mediterranean climate with warm, dry summers and wetter, cooler winters. The average maximum temperature (by month) ranges from 63 °F in January to 79.5 °F in September. Average minimum temperatures range between 41.6 °F in Jan and 53 °F in August (Station No. 047851-4) (WRCC 2007). In this coastal area, the majority of precipitation comes as rainfall during the winter months (Nov–April). Average annual precipitation is 23.45 inches (WRCC 2007). 2. Growing Season For the purposes of delineations of waters/wetlands, the US ACOE, EPA and Natural Resources Conservation Service (NRCS) currently define “growing season” as that part of the year when soil temperatures at 19.7 inches below the soil surface are higher than “biological zero” (41 °F or 5 °C) (USDA Soil Conservation Service [NRCS] 2006). When soil temperature data are not available, current national guidance for the delineation of waters/wetlands is to use the closest and best available weather station data to estimate the length of the growing season (US ACOE 1992). For example, current national guidance allows for use of the 28 °F standard from either WETS (Climate Analysis for Wetlands) data (NRCS 2002) or data from pertinent NRCS Soil Surveys to approximate the duration of frost-free intervals for a particular location (US ACOE 1992). In this report, recent data recorded at WETS station CA7851, in the city of San Luis Obispo (NRCS 2002), were used to determine the growing season. Using the NRCS guidance, this data indicates that the growing season technically extends throughout the winter wet season (365 days) in the San Luis Obispo region. For the purpose of determining the hydrology parameter for delineation (COE 1992), five percent (5%) of the growing season (365 days) results in a requirement for saturation to the surface for at least 18.3 days. Appendix C: Biological Resources C.8-12 Chevron Tank Farm EIR 7 IV. METHODS A. Rationale for the determination of the geographic extent of waters of the U.S., including wetlands Based upon guidance provided in the 1987 Manual (Environmental Laboratory 1987), the Arid West Supplement (Environmental Laboratory 2006), and in Regulatory Guidance Letters 82-2, 86-9, and 90-7, wetlands disturbed through natural and/or anthropogenic alterations of hydrology, soils, and/or vegetation do not necessarily exist under “normal circumstances.” As introduced in the preceding text, hydrologic, soil, and plant community conditions at the SLO Tank Farm have and continue to be disturbed by a suite of historic and/or current crude oil storage, agricultural, and development-related activities. Disturbances to hydrology include ditching, grading, cultivation, redirection and/or consolidation of storm water to and through the site, oil spill containment features, and installation of numerous drainage and pipe systems (Photographs 1, 6, and 10). Disturbances to soils include deposition of imported fill materials, berm construction, ripping, plowing, discing, road construction, and compaction by domestic livestock (Photographs 10 through 13). Disturbances to native vegetation include domestic livestock grazing, conversion of native and non-native plant communities to pasture, clearing, discing, burning, etc. (Photographs 2 and 13). Due to the combination of site disturbances and their effects on current hydrologic, soil, and vegetation conditions on the SLO Tank Farm, the WSP/Padre technical team chose to delineate waters/wetlands using a combination of “Routine” and “Atypical” approaches as articulated in the 1987 Manual (Environmental Laboratory 1987). B. Consistency with SWANCC & “Rapanos” Guidance Recent decisions in the U.S. Supreme Court (i.e., Solid Waste Agency of Northern Cook County [SWANCC] v. US ACOE (531 U.S. 159, 2001) January 9, 2001; Rapanos et ux., et al. v. United States, June 19, 2006) have led to the development of federal guidance that requires a careful examination and documentation of the physical location(s) and hydrologic connections among waters/wetlands. To determine federal jurisdiction, particular focus is given to (1) surface hydrologic connections between a wetland and “navigable waters in fact,” (2) “adjacency” of a wetland to traditionally navigable waters, and thus (3) a “significant nexus” to interstate commerce. In addition, waters/wetlands features can be determined to be under federal jurisdiction by the US ACOE or EPA if a “significant nexus” can be shown between the wetland feature in question and its contribution to the maintenance or restoration of the physical, chemical, or biological integrity of downstream waters that are traditionally navigable. Federal guidance for field delineation procedures that address the Rapanos decision has been offered by the EPA and the US ACOE in a joint memorandum issued June 5, 2007 (EPA and US ACOE 2007). To the extent possible, the WSP/Padre team adhered to extant SWANCC and Rapanos guidance in offering suggestions for determination of federal jurisdiction in waters/wetlands at the SLO Tank Farm. To begin, we recognized that the East Fork of San Luis Obispo Creek from the SLO Tank Farm reach and then downstream is infrequently intermittent or perennial. Thus, it is regularly Appendix C: Biological Resources C.8-13 Chevron Tank Farm EIR 8 connected via surface flows to the traditionally navigable waters of the Pacific Ocean. Having established the connection of San Luis Obispo Creek system to the Pacific Ocean, we recognized relatively natural riverine, slope or depressional waters/wetlands features that were either within or “adjacent” to (i.e., bordering, neighboring, or contiguous) East Fork of San Luis Obispo Creek and its main tributaries (e.g., Tank Farm Creek) as likely to be jurisdictional under current federal guidance. Non-adjacent isolated depressions or slopes, whether they were relatively natural or human-made features generally were not recommended by the WSP/Padre team as being under federal jurisdiction. C. Office Methods & Review of Background Materials Prior to our field delineation, the WSP/Padre team reviewed available public domain information including current and historic aerial photographs, the San Luis Obispo County Soil Survey (NRCS 2008), U.S. Geological Survey maps, weather data, etc. We also reviewed site documentation provided by EMC Staff and their consultants. These documents included a chronology of land uses and events on the site (Avocet Environmental 2007) and previous delineation maps and/or reports (EDAW 1999, BBL 1999, Jenesis 2003, and Rincon 2003). Table 1 compares methodologies and results from the previous reports. D. Field Delineation Methods 1. Delineation Team Members The WSP/Padre delineation team consisted of Ms. Jessica Peak and Mr. Brian Dugas of Padre Associates, and Drs. Lyndon C. Lee and Peggy L. Fiedler of WSP. Both Lee and Fiedler are Professional Wetland Scientists certified by the Society of Wetland Scientists. Both Lee and Fiedler have over 20 years experience delineating waters/wetlands throughout the California Central coast. Resumes are included in Appendix C. 2. Field Review and Verification of Other Delineations, Sample Plot Locations, and Data Documenting Site Conditions During past delineation efforts on the Tank Farm property (Table 1), different types of vegetation, soils, and hydrology data have been collected to characterize and document site conditions. In developing this report, we reviewed each delineation map in the field to assess the accuracy of wetland identifications and delineated wetland boundaries. When necessary, we adjusted wetland boundaries to reflect current conditions in the field, current federal guidance, etc. Table 2 provides a summary of waters/wetland areas removed, adjusted, or added based on our 2007-2008 field observations. While we reviewed all previous reports and supporting data from other consultant teams (e.g. EDAW 1999, BBL 1999, Jenesis 2003, and Rincon 2003), for the sake of brevity we did not duplicate these data (field sheets, charts, graphs, etc.) or incorporate them into this report. Instead, in this document we provide a general summary of the delineation approach taken by the various consultants (Table 1), and with this explanation, we incorporate their supporting data by reference. Appendix C: Biological Resources C.8-14 Chevron Tank Farm EIR 9 WSP/Padre technical team data sheets for wetlands identified for the first time in this report are included in Appendix B. Consistent with current US ACOE guidance, the Appendix B data sheets are tabulated on the Arid West Supplement forms (Environmental Laboratory 2006). 3. Hydrology The WSP/Padre field team spent the late fall of 2007, and the winter/early spring wet season of 2007 – 2008 observing patterns of ponding and saturation of soils on the SLO Tank Farm site. Consistent with the 1987 Manual “Atypical Situation” protocols, the Arid West Regional Supplement (Environmental Laboratory 2006), and current regulatory guidance (i.e., US ACOE 1992), wetland hydrology can be determined by evaluating a variety of direct and indirect indicators. Direct indicators, include gage or well data, flood predictions (i.e., FEMA maps), and historic records pertaining to the study area. Indirect field indicators include, but are not limited to visual observation of inundation and/or saturation, sediment deposition, drainage patterns in wetlands, hydric soil characteristics, watermarks, drift lines, oxidized channels (i.e., rhizospheres) associated with living roots and rhizomes, and water stained leaves (Environmental Laboratory 1987). Wetland hydrology is considered to be present at a location if field observations indicate the area has a high probability of being periodically inundated or saturated to the soil surface for a sufficient duration of the growing season to develop anaerobic conditions in the surface soil environment (i.e., root zone) (Environmental Laboratory 1987). According to guidance in the Arid West Regional Supplement (Environmental Laboratory 2006), if at least one primary indicator or at least two secondary indicators are present at a sample point, the wetland hydrology criterion is met. Due to the degrees and types of disturbances on the SLO Tank Farm property, we examined several types of evidence that would allow us to determine whether wetland hydrology previously existed or currently exists. The delineation team considered the type and frequency of site alterations that occurred, the effects of alterations on site hydrology, and, to the extent possible, hydrologic conditions that previously existed. 4. Soils The WSP/Padre team determined the presence of hydric soils consistent with criteria articulated in the 1987 Manual (Environmental Laboratory 1987), current regulatory guidance, Field Indicators of Hydric Soils in the United States, Version 6.0, Hydric Soils of the United States (USDA, NRCS 2006), and information provided in the Arid West Regional Supplement (Environmental Laboratory 2006). Hydric soils are defined as soils “that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part” (Federal Register July 13, 1994). Determination of whether or not a soil is hydric is based on the fulfillment of at least one of four technical criteria (Federal Register September 18, 2002; Table 3). Appendix C: Biological Resources C.8-15 Chevron Tank Farm EIR 10 The technical criteria can be satisfied using a combination of published soils information and field indicators. Field indicators for determining whether a soil satisfies the hydric soil definition and the technical criteria for hydric soils are listed in the Field Indicators of Hydric Soils in the United States (USDA NRCS 2006). Field indicators published in the above-referenced document supersede guidance provided in the 1987 Manual (Environmental Laboratory 1987). On the SLO Tank Farm property, the WSP/Padre team used direct field observations in combination with the San Luis Obispo County Soil Survey (NRCS 1979, 2004, 2008) and San Luis Obispo County Hydric Soils list (NRCS 2008). Specifically, we examined soils and historical air and site photographs for evidence that hydric conditions currently exist or previously existed. In particular, we considered the type and timing of alteration(s) (e.g., fires, grazing, plowing, disking, ditching), historic and extant effects of alteration(s) on soil conditions, and locations and types of soils that previously occurred on the site. 5. Vegetation Presence of hydrophytic vegetation was determined using criteria and procedures outlined in the 1987 Manual (Environmental Laboratory 1987). Dominant species in each of four strata (tree, sapling/shrub, herb, and woody vine) were identified. Species identifications and taxonomic nomenclature follow The Jepson Manual (Hickman 1993) with the exception of the Cyperaceae, which follows the Flora of North America, Volume 23 (FNA 2002). Each species' indicator status was assigned using the National List of Plant Species that Occur in Wetlands: California (Region 0) (Reed 1988) (hereafter “The National List”). A species indicator status refers to the relative frequency with which the species occurs in jurisdictional wetlands (Table 4). The Arid West Regional Supplement (Environmental Laboratory 2006) recommends that presence of dominant species is determined using the 50/20 rule. Dominant species are those species that individually or collectively cover more than 50% of the total vegetative cover within each stratum, in addition to those species that by themselves cover 20% or more of the total cover within each vegetation stratum. According to both the 1987 Manual and the Arid West Regional Supplement, the hydrophytic vegetation parameter for wetlands is met when, under normal circumstances, more than 50% of the dominant species from each stratum are obligate wetland (OBL), facultative wetland (FACW), and/or facultative (FAC) species. The 1987 Manual (but not the Arid West Regional Supplement) calls, in certain circumstances, for a plus (+) or a minus (-) sign to be included for the purpose of designating a higher or lower level of the indicator status. A FAC- indicator status is generally not considered to be an indicator of hydrophytic vegetation (i.e., it is treated in the same way as facultative upland (FACU), upland (UPL), and not listed (NL) status). On the SLO Tank Farm property, we examined existing vegetation and historical aerial and site photographs for evidence that hydrophytic vegetation conditions currently exist or previously existed. In particular, we considered the type and timing of alteration(s) (e.g., plowing, disking, ditching, mowing, burning [historic and extant]), effects of alteration(s) on vegetation conditions, and locations and types of plant community types that previously occurred on the site. Appendix C: Biological Resources C.8-16 Chevron Tank Farm EIR 11 V. RESULTS A. Geographic Extent of Waters of the U.S., Including Wetlands 1. Summaries of Previous Consultants’ Reports Table 1 provides a tabular summary of previous waters/wetland delineation work by consultant teams. Below, we offer an expanded summary and synthesis of previous work. a. EDAW – 1999 In 1999, EDAW was retained by UNOCAL to delineate waters/wetlands on the property then known as the “Unocal Tank Farm.” EDAW used as a baseline a previous waters/wetlands delineation that had been conducted in 1994 by the US ACOE, Los Angeles District, for the tank farm south of Tank Farm Road. The delineation effort documented a total of 39.15 acres of jurisdictional waters/wetlands at that time, but the delineation was considered to have expired by June 1999. EDAW used both routine and comprehensive approach to the delineation of waters/wetlands at the SLO Tank Farm site. Initially, EDAW identified areas of potential jurisdiction on a 1997 1:200 aerial photograph. These areas were identified and further mapped in the field. The field effort was conducted by two EDAW scientists, who collected representative data at 64 sampling points in May, 1999. Sixty-four data sheets are contained in the EDAW (1999) report. Subsequent to the field effort, the waters/wetlands polygons were digitized using a GIS system to calculate area. EDAW (1999) reported a total of 57.2 acres of jurisdictional waters/wetlands, with 55.8 acres of wetlands and 1.4 acres of “other waters.” Wetlands were categorized as freshwater wetlands, season wet meadow, jurisdictional tar flats, and riparian wetlands. EDAW described the 1.4 acres of “other waters” as the tributary to Acacia Creek and several areas in which standing water was observed but in which no hydrophytic vegetation was present. b. Ted Winfield & Associates – 2001 The map that resulted from Mr. Ted Winfield’s adjustments to the EDAW (1999) delineation in 2002 is included in this report as Figure 3. It is important to note the following points: (1) Ted Winfield did not conduct his own delineation. Instead, Dr. Winfield used EDAW’s original 1999 map as the basis for his field exercise in the identification of what he called “isolated non-jurisdictional wetlands.” (2) From all appearances, and without the ability to confirm, it is probable that the 1999 map developed by EDAW was the one also used later by Blasland, Bouck & Lee (BBL), and all subsequent reviews of waters/wetlands (e.g., Jenesis [2003]). Appendix C: Biological Resources C.8-17 Chevron Tank Farm EIR 12 (3) In 1999, NRCS/US ACOE verified the EDAW delineation. The response letter from Ms. Cheryl Zelus of NRCS to Mr. Gary Jakobs of EDAW is included in Appendix A. (4) Dr. Winfield’s analysis of the extent of US ACOE jurisdiction is no longer supported as a result of the SWANCC decision. Winfield argued that a single berm is sufficient to effect “isolation” in this regulatory context. The key sentence is found on the first major paragraph on page 4 (lines 17-19) of his letter report: In situations where there are multiple barriers [berms] between the wetland and the nearest navigable water or tributary water, these wetlands should be considered isolated. (5) The US ACOE (Mr. Bruce Henderson) met with John Ljung of Unocal on September 9, 2002 to review Winfield’s new map; however there appears to be no follow-up letter or documentation from the US ACOE pertaining to the results of the 2002 review. c. Jenesis – 2003 Jenesis used a one-parameter approach (i.e., presence of wetland plants, or wetland soils, or wetland hydrology) to determine whether a “state wetland” was present at each “federal” wetland as delineated by EDAW. In so doing, Jenesis staff appeared to have relied primarily on the presence of wetland vegetation. The report states: The presence of hydrophytic vegetation at an observation point typically was the parameter satisfying the definition of a state wetland, more commonly than the presence of evidence of suitable hydrology (p. 4, ¶6, lines 29-31). Delineating wetlands by using a one-parameter approach is the methodology generally accepted by the California Coastal Commission for wetlands protected by the state under the California Coastal Act (CCA) (California Public Resources Code Division 20, §§30000 – 30012). Within the Coastal Zone as defined by the CCA, wetland protection is determined by the Local Coastal Program for the coastal city or county. As discussed at the outset of this report, the waters/wetlands on the SLO Tank Farm are not protected by the California Coastal Act as designated by the LCP for San Luis Obispo County because they are not within the designated local coastal zone. Therefore, the Jenesis wetlands delineation used an approach that is appropriate only for identification and delineation of “state wetlands” as protected by the CCA, and not by any other California Public Resources Code. Further, as a consequence of an inappropriate extension of the “riparian zone” protected by the 1600 series public code, and the inappropriate use of a CCA wetland delineation methodology, the wetlands protected by the State of California should be re- delineated, and focused on the riverine waters and/or wetlands on the SLO tank farm project site. The result of this exercise would be to decrease significantly the area of “state wetlands” that have been presented and discussed throughout the planning processes for site remediation and development. Appendix C: Biological Resources C.8-18 Chevron Tank Farm EIR 13 d. Blasland, Bouck and Lee (BBL) – 1999/2003 In 2003, staff from BBL apparently obtained (electronic) polygons from the original 1999 EDAW delineation map and overlaid them on a base map with enhanced site topographic information (2 ft. contour intervals). No data sheets, survey information, or reports accompany the BBL effort. e. Rincon Consultants, Inc. – 2003 In 2003, staff from Rincon Consultants, Inc. mapped the distribution of vernal pool fairy shrimp in wet and dry seasons. Figure 4 is the WSP/Padre team synthesis of the Rincon work. It shows the distribution of vernal pool fairy shrimp (as well as other special status species identified subsequently) in waters/wetlands mapped by the WSP/Padre team. 2. The WSP/Padre Delineation The WSP/Padre field team delineated one hundred three (103) polygons on the SLO Tank Farm project site (Figure 5 and Table 5). In addition to delineation, Figure 6 and Table 5 offer a classification of waters/wetland consistent with the hydrogeomorphic classes described by Brinson (1993) and Brinson et al. (1995). On the SLO Tank Farm site, we observed and mapped riverine, depressional and slope waters/wetlands. Examples of each are given in Photographs 5, 6, and 7, respectively. As introduced at the outset of this report, Mr. Bruce Henderson of the US ACOE Los Angeles District worked in the field with the WSP/Padre technical team on June 9, 2008. Results of this field review effort are that Mr. Henderson determined that, of the 103 waters/wetlands polygons mapped by the WSP/Padre team, 38 are wetlands per se and under federal CWA jurisdiction. Their combined area is 49.0 acres (Table 5). Another six (6) polygons are so-called “other waters” of the U.S. Their combined total area is 3.9 acres (Table 5). Therefore, the total area of waters/wetlands under federal CWA jurisdiction at the SLO Tank Farm site is 52.9 acres. A total of 44 mapped polygons on the SLO Tank Farm project site are not under federal CWA jurisdiction because they are isolated depressional features that either have no connection with or adjacency to traditionally navigable waters and/or have no significant nexus with interstate commerce, or maintenance of the physical, biological, or chemical integrity of downstream waters (Figure 5 and Table 5). However, in all instances, these wetland features support special status species that are protected at federal and/or state levels of jurisdiction (Figure 4 and Table 5). Total area of the waters/wetlands not under federal CWA jurisdiction but which do support special status species is 15.8 acres (Table 5). Finally, fifteen (15) wet depressional features mapped on the SLO Tank Farm site do not support any special status species. Their combined total area is 3.4 acres (Figure 5 and Table 5). Appendix C: Biological Resources C.8-19 Chevron Tank Farm EIR 14 B. Hydrology 1. Landscape-Scale Mapping The California Department of Water Resources (CA DWR) has mapped the SLO Tank Farm site within the 44,370-acre “San Luis Obispo Hydrologic Subunit” of the 11,326 mi2 Central Coast Hydrologic Region (Figure 7). The CA DWR websites provides extensive information regarding general characteristics of water and water resources for the San Luis Obispo Subunit. For the 2005 Update to the California Water Plan, please refer to www.waterplan.water.ca.gov/previous/ cwpu2005/index.cfm (CA DWR 2005 a). For maps of hydrologic units, please refer to http://www.landwateruse.water.ca.gov/studyarea/maps.cfm (CA DWR 2005b). Similarly, the U.S. Geological Survey has identified the SLO Tank Farm site as existing within the #18060006 Central Coastal Hydrologic Unit. Information pertaining to the 18060006 hydrologic unit can be obtained at [http://cfpub.epa.gov/surf/huc.cfm?huc_code=18060006]. 2. Site Specific Mapping and Hydrologic Processes a. Maps and Photographs In 2008, Avocet Environmental characterized the SLO Tank Farm project site with respect to the storm water catchment areas that contribute flows to the site or that exist entirely within the site (Figure 8). Also in 2008, the WSP/Padre Technical team (1) arranged for an aerial photograph to be taken of the site during wet conditions (Figure 2), and (2) developed an estimate of the directions of flow for surface waters on the SLO Tank Farm site (Figure 9). The Avocet and WSP/Padre maps are overwhelmingly in agreement, departing only in their estimates/treatment of the frequency of intermittent or ephemeral connections of surface flows from the southern portions of the SLO Tank Farm site to the East Fork of San Luis Obispo Creek. b. The North Marsh/Tank Farm Creek System The North Marsh/Tank Farm Creek system occupies the western portions of the SLO Tank Farm property, both north and south of Tank Farm Road (Figures 6, 8, and 9). The North Marsh/Tank Farm Creek system collects precipitation and storm water from a catchment approximately 485 acres in size, including approximately 150 acres on the SLO Tank Farm proper (Figure 8 and 9). Much of the catchment that contributes flow to the North Marsh/Tank Farm Creek system is located north of the northern SLO Tank Farm property boundary. Water currently enters the SLO Tank Farm site as sheet flow or is concentrated into natural channels that flow in a generally westerly direction parallel to the northern property line. Development plans for the area immediately north of the property likely will change the configuration of catchment areas upgradient of the SLO Tank Farm site. Specifically, flows are likely to concentrate toward one or possibly a few locations in the northwest property corner. As of this writing, it appears that the water storage capacity of the “North Marsh/Tank Farm Creek” complex that will be retained on Appendix C: Biological Resources C.8-20 Chevron Tank Farm EIR 15 the SLO Tank Farm site will be more-than-adequate to store and process any reasonable hydrologic changes that may result from up-gradient developments. Water from the north-central and north-eastern portions of the SLO Tank Farm site flows in a generally southwesterly direction (1) in and through the gently sloping alluvial soils that have aggraded in the North Marsh complex, upstream of the Tank Farm Road thru fill, and (2) in the highly modified and degraded channel system known as Tank Farm Creek (Photographs 16, 17, and 18). Water in this channel system passes under Tank Farm Road via twin corrugated metal pipe (CMP) culverts or twin concrete culverts installed through the Tank Farm Road roadway fills (Photographs 19). At this point in the landscape, it appears that water can flow either way through the twin concrete culverts that pass under Tank Farm Road. In addition, several ditches along the Tank Farm Road right-of-way collect storm water from adjacent frontage properties. A local high point is located approximately 1,000 feet east of South Higuera Street. Storm water collected east of this point drains toward the SLO Tank Farm and eventually discharges into the North Marsh/Tank Farm Creek complex. After passing under Tank Farm Road, water in the main stem of the North Marsh/Tank Farm Creek system flows generally southeast (Figure 9). At high water and during floods, the Tank Farm Creek channel system overflows its banks and engages several depressional features adjacent to the main channel system (e.g., wetlands #42 and #43, Figure 9). South of Tank Farm Road and immediately north of the extreme southeast corner of the SLO Tank Farm property is a discharge point for surface water flows in the North Marsh/Tank Farm Creek system (Photograph 20). This discharge point and surrounding area is the downstream end of the North Marsh/Tank Farm Creek channel system on the SLO Tank Farm site. c. Depressions North of Tank Farm Road In addition to the North Marsh/Tank Farm Creek complex, a series of depressional wetlands is located throughout the northern portion of the SLO Tank Farm project site. These wetland features are either man-made (e.g. within old containment berms for oil storage tanks – Wetlands #15, 16, 21, 30, 32, 35, 37, Figure 9) or relatively natural or excavated concave features that pond water for long (e.g., 7-30 days) or very long (e.g., > 30 days) duration (e.g., Wetlands #6, 33, 7, 8, 101, Figure 9). The bottom of these depressions can consist of concrete, urban fill, or relatively native soils that are highly compacted by domestic livestock, machinery, etc. These depressions receive water from direct precipitation, or in some instances, from storm flows that emanate from the immediately surrounding small sub-watershed areas. d. Hydrologic Processes for Areas South of Tank Farm Road As discussed previously, the SLO Tank Farm is situated adjacent to and north of the East Fork of San Luis Obispo Creek, an infrequently intermittent, mostly perennial tributary to the main stem of San Luis Obispo Creek (Photographs 5 and 15). The main stem of San Luis Obispo Creek is a perennial stream that joins the tidal and traditionally navigable waters of the Pacific Ocean. Although infrequent in occurrence, a large portion of the southern extent of the SLO Tank Farm site (e.g., areas mapped as “Closed Catchment” in Figure 8, including the areas south of the East Fork San Luis Obispo Creek levee system and Catchment Areas B1, B2, B3, and B4 in Figure 8) discharges directly to the East Fork of San Luis Obispo Creek (Figures 8 and 9) via twin culverts Appendix C: Biological Resources C.8-21 Chevron Tank Farm EIR 16 controlled by old gate structures (Photograph 20). However, most of the time the southern portion of the SLO Tank Farm site acts as a closed catchment that retains precipitation and storm water (Figure 8). This retention is a legacy of the historical containment structures and other topographic and hydrologic system modifications that were made to facilitate oil and water storage and containment operations on the SLO Tank Farm site. To this end, there are a series of depressional wetlands located throughout the southern portion of the SLO Tank Farm site that are either man-made (e.g., within old containment berms for oil storage tanks – Wetlands #45, 55, 70, 81, 83, Figure 9) or relatively natural or excavated concave features that pond water for long (e.g., 7-30 days) or very long (e.g. > 30 days) duration (e.g., Wetlands #53, 54, 58, 60, 84, 85, 86, 90, 92, Figure 9). As observed in the depressions on the northern portion of the site, the southern depressions have bottoms that can consist of concrete, urban fill, or highly compacted soils. They also receive water from direct inputs of precipitation or via storm flows that emanate from the small sub-watersheds that surround them. e. Relationship of SLO Tank Farm Site Hydrology to Waters/Wetland Delineations For the purposes of determining federal CWA jurisdiction, the presence or absence of water in SLO Tank Farm waters/wetlands is usually the dominant parameter for determining final geometries of mapped polygons. In the case of the riverine features on the site (e.g., the North Marsh/Tank Farm Creek and East Fork San Luis Obispo Creek systems), bed and bank features and ordinary high water (OHW) marks are often the principal hydrologic features that determine the lateral extent (width) of federal jurisdiction. That is, the lateral extent of many of the jurisdictional calls in these riverine waters/wetland is driven by the location of OHW on bank features and not by adjacent wetland boundaries. With respect to depressional wetlands, soils on the SLO Tank Farm site are highly compacted as a consequence of grazing/trampling by domestic livestock, operation of machinery on soil surfaces, construction activities, etc. Consequently, they tend to pond water for long (e.g., 7-30 days) or very long (e.g., >30 days) duration (Photographs 6 and 8). The geographic extent of these depressions is usually defined by the extent of long duration ponding, which is easily mapped during the wet season. At times, and in addition to ponding, we observed long duration saturation of soils to the surface. Saturation usually occurred in the large slope wetlands associated with the North Marsh/Tank Farm Creek complex, in smaller slope features, or in depressions that had been ponded for long duration but that were drying out as a result of evapotranspiration. Appendix C: Biological Resources C.8-22 Chevron Tank Farm EIR 17 C. Soils 1. Natural Resources Conservation Service Mapping & Other Studies The Natural Resources Conservation Service (NRCS) Soil Survey of San Luis Obispo County identifies and describes soils within the SLO Tank Farm project site as consisting of the Xererts- Xerolls-Urban land complex with 0-15 percent slopes (Figure 10) (Soil Survey Staff 2004). These soils have some hydric inclusions. Soils at the SLO Tank Farm project site also were described by Jenesis (2003). The WSP/Padre team confirmed the presence of the NRCS mapped soils unit on the SLO Tank Farm site. The Xererts component of the Xererts-Xerolls-Urban land unit as mapped by NRCS makes up approximately 30 percent of this map unit. Xererts formed from weathered sedimentary rocks. Xererts soils are deep and well drained, with little available water to a depth of 60 inches. The Xererts component is not flooded, or ponded, and there is no zone of water saturation within 72 inches of the soil surface. The soil does not meet the hydric criteria. The Xererts component of the Xererts-Xerolls-Urban land complex includes Cropley or Diablo soils. Cropley soils are clays that occur on alluvial fans and plains. These soils form in alluvium that weathered from sedimentary rocks and typically are very dark gray to black in the top 32 inches. The Xerolls component makes up 30 percent of the Xererts-Xerolls-Urban land map unit. Xerolls form from alluvium and/or residual materials derived from weathered sedimentary rock. This soil type is deep and well drained, with little available water to a depth of 60 inches. The Xerolls component is not flooded or ponded, and there is no zone of water saturation within 72 inches. The soil does not meet the hydric criteria. Urban land makes up 20 percent of the Xererts- Xerolls-Urban land map unit. 2. WSP/Padre Observations On the SLO Tank Farm site, the WSP/Padre team observed that the modal soils have been disturbed extensively by historic petroleum fires, earthmoving equipment, filling, compaction by domestic livestock, and construction or demolition activities for the tank farm infrastructure. Consequently, much of the shape and physical characteristics of the soil materials have been altered. Given the types and degrees of disturbances to soils on the site, the hydric soil parameter usually is met via ponding or saturation to the surface for long (e.g., 7-30 days) or very long (e.g., >30 days) durations (National Technical Committee on Hydric Soils Criteria #3, Table 3). Ponding occurs frequently in compacted soils associated with very slight to pronounced concave microtopography on the site (Photographs 3, 6, 8, and 21). In the most highly compacted soils, it is not uncommon to observe non-saturated conditions immediately below ponding. If surface compaction of soils is not as pronounced, then some redoximorphic features can and often do develop within the upper 12 inches of soil profiles throughout the SLO Tank Farm site. These features include redox concentrations, redox depletions, oxidized rhizospheres, organic matter streaking and/or stripped matrices in sandy soils, gleying, and production of hydrogen sulfide Appendix C: Biological Resources C.8-23 Chevron Tank Farm EIR 18 odors (especially in the North Marsh soils), etc. Soil colors vary a great deal throughout the site, given the amount of filling, earthwork, and import of concrete and other materials. On a particular note, in areas around the old storage tank foundations is the presence of burned crude oil incorporated into many soil profiles. Depending on the type and intensity of fire that occurred in the area, residual burned crude oil can be present in forms ranging from relatively large aggregates up to 3-4 inches in mesh diameter, to small, pebble-sized granules. Structure of the granules can range from strong angular blocky to very weak, sub-angular blocky. Colors of aggregates depend greatly on the degree of weathering, but tend to range from dark brown to almost black (e.g., Munsell [2000] Colors 10YR3/2 to 10YR 2/1). In some areas of the SLO Tank Farm, very dark and smooth, tar-like accumulations of residual oil will occupy the soil surface or interstices in desiccation cracks. These tar-like deposits will change markedly in viscosity with heating and become tacky to the touch or actually flow if the diurnal heat peak is intense. For the purposes of delineation, the residual oils incorporated in soil profiles are obvious and not confusing as either structure or morphology derived from saturation, low oxidation- reduction states, etc. D. Vegetation Vegetation on the site has been described by EDAW (1999), Jenesis (2003), and Rincon Associates (2003). However, a brief summary is provided in the following text. 1. General Description of SLO Tank Farm Vegetation Plant communities along the streams of the central coast of California support a dynamic complement of native trees and other woody species, many of which can and do occur outside of the riparian corridor. Perhaps the most conspicuous feature of the mature, native riparian vegetation within the southern portion of California’s central coast is the dominance of large coast live oaks (Quercus agrifolia). Stands of live oak range in density from woodland (wherein individual tree canopies do not interdigitate) to forest (i.e., tree canopies overlap). These stands occur along stream terraces in the upper and middle reaches of moderately-sized riverine systems. The riparian overstory is mixed, with arroyo willow (Salix lasiolepis) and California walnut (Juglans californica var. californica) dominant in many places, particularly in the downstream reaches, such as at the East Fork of San Luis Obispo Creek on the SLO Tank Farm site. The understory along the East Fork of San Luis Obispo Creek has been disturbed throughout the reach on the SLO Tank Farm site, and supports a mix of native and nonnative plant species. Understory shrubs occurring on creek banks include coyote brush (Baccharis pilularis) and California sage (Artemisia californica) where the canopy is open, and blackberries (California blackberry [Rubus ursinus] and Himalayan blackberry [Rubus discolor]) in both sun and shade. Herbaceous species occurring in the riparian corridor include mugwort (Artemisia douglasiana), poison hemlock (Conium maculatum), smilo grass (Piptatherum miliaceum), wild oats (Avena barbata, A. fatua), and Italian thistle (Carduus pycnocephalus). Appendix C: Biological Resources C.8-24 Chevron Tank Farm EIR 19 In the less disturbed stream reaches in this geographic region, typically higher in the watershed than the SLO Tank Farm site, large oaks are joined by white alder (Alnus rhombifolia) and western sycamore (Platanus racemosa) as dominants, particularly immediately adjacent to the stream channel. In addition to these tree species, the riparian plant communities (i.e., vegetation adjacent to, and influenced by, the presence of moving water), consist of a small suite of native shrubs and vines found in the understory. Poison oak (Toxicodendron diversiloba) is ubiquitous, as is California blackberry (Rubus ursinus). Less common, but still frequently occurring in the shrub layer, are several species of gooseberry (Ribes spp.) and honeysuckle (Lonicera spp.). These taxa are critically important food sources for the native fauna, providing a varied and abundant source of berries throughout much of the year. In the low elevation coastal plain, willows and California walnut are prominent in the lowland riparian ecosystems. Native oak savannah/bunch grass mosaic is the reference standard condition in upland areas along the riparian corridor. Invasion by exotic species is a significant concern in California. Many streams in the region are now completely devoid of a native riparian ecosystem, consisting instead of a large suite of exotic Eurasian weeds (e.g., Bromus diandrus, Carduus pycnocephalus, Melilotus officinale, Piptatherum miliaceum, Sonchus oleraceus), ornamental escapes (e.g., Delairea odorata [Senecio mikanioides], Tropaeoleum majus, Vinca major), or a planted riparian corridor of nonnative trees (e.g., Eucalyptus globulus). Grassland areas within the region which are not frequently disturbed are characterized by a native perennial bunch grassland community type which has an occasional tree or shrub (e.g., Mexican elderberry [Sambucus mexicana]). Grassland species found in the SLO Tank Farm site (EDAW 1999) include ripgut brome, soft chess (Bromus hordeaceus), purple needlegrass (Nasella pulchra), tarweed (Deinandra congesta ssp. luzulifolia and Centromadia parryi ssp. congdonii), owl’s clover (Castilleja densiflora ssp. obispoensis), and fennel (Foeniculum vulgare). Exotics occurring in frequently disturbed areas within the uplands include yellow star- thistle (Centaurea solstitalis) intermixed with non-native grasses and herbaceous species such as wild oats (Avena barbata), soft chess (Bromus hordeaceus), annual fescue (Vulpia myuros var. hirsuta), perennial ryegrass (Lolium perenne), rip-gut brome (Bromus diandrus), black mustard (Brassica nigra), Russian thistle (Salsola iberica), wild radish (Raphanus sativus), and sweet fennel (Foeniculum vulgare). Five special status plant species have been observed within the project site. These species are Congdon’s tarplant (Centromadia parryi ssp. congdonii), Hoover’s button-celery (Eryngium aristatulum var. hooveri), San Luis Obispo County morning glory (Calystegia subacaulis ssp. subacaulis), Obispo Indian paintbrush (Castilleja densiflora ssp. obispoensis), and San Luis Obispo serpentine dudleya (Dudleya abramsii ssp. bettinae). All five species are California Native Plant Society (CNPS) List 1B species. Appendix C: Biological Resources C.8-25 Chevron Tank Farm EIR 20 2. Wetland Classes Three classes of wetlands (sensu Brinson 1993) are found at the project site – depression, slope, and riverine with associated riparian communities, with the North Marsh/Tank Farm Creek representing a slope/riverine complex (Figure 6). Each class is described in the following text. a. Depressional Waters/Wetlands Most if not all of the depressional waters/wetlands on the SLO Tank Farm project site are not natural features of the landscape (Photographs 6 and 8). Depressional waters/wetlands have formed as a result of site activities, specifically, they are found in the bottom of the old storage tanks, at the base of human made berms surrounding the tanks, and as isolated depressions resulting from the site’s long history of ranching and industrial use. While many of the depressions support no vegetation for all or a portion of the year, some of them support large populations of rare plant species, including Congdon’s tarplant and Hoover’s button-celery. Other species commonly present include foxtail fescue (Vulpia myuros), rabbit’s foot grass (Polypogon monspeliensis), dwarf wooly marbles (Psilocarphus brevissimus), popcorn flower (Plagiobothry undulatus), spikerush (Eleocharis spp.), birdfoot trefoil (Lotus corniculatus), and various native and widespread rushes (Juncus bufonius var. bufonius, J. phaeocephalus, J. tenuis, J. xiphioides). b. Slope Waters/Wetlands Few slope wetlands are found on the SLO Tank Farm site. Those present are primarily the result of the ditching, diking and berming from both ranching and industrial activities. c. Slope/Riverine Waters/Wetlands Complex A large slope/riverine wetland known as the North Marsh/Tank Farm Creek occurs on the northern portion of the SLO Tank Farm (Photograph 7). This wetland complex resulted from the impoundment and subsequent sedimentation of an unnamed second order channel of San Luis Obispo Creek due to the construction of Tank Farm Road. This construction transformed a riverine wetland ecosystem into a slope riverine proximal wetland type. Currently, the North Marsh is dominated by bulrush (Schoenoplectus acutus), Eleocharis macrostachya and common cattail (Typha latifolia). Curly dock (Rumex crispus), chain speedwell (Veronica catenata), and the rare Congdon’s tarplant are also present, sometimes locally abundant. Where Tank Farm Creek flows upgradient of the North Marsh, vegetation within the channel is dominated by widespread palustrine persistent and non-persistent emergent species. These include common cattail and water plantain (Alisma plantago-aquatica), as well as the common curly dock, water speedwell, among others. Several isolated arroyo willows occur along the banks, particularly within the upper reach of Tank Farm Creek on the SLO Tank Farm site. Appendix C: Biological Resources C.8-26 Chevron Tank Farm EIR 21 d. Riverine Waters/Wetlands & Associated Riparian Zones Two prominent riverine features, East Fork of San Luis Obispo Creek and Tank Farm Creek, comprise most of the riverine waters/wetlands on the Project Site. However, a notable number of artificial drainage ditches have been constructed, again, as a result of site history. Tank Farm Creek, itself, is largely an artificial ditch, clearly the result of relocation of the original creek channel to facilitate ranching and industrial uses. This is particularly true below Tank Farm Road, where the creek takes the form of several large, parallel, and intricately plumbed ditches that drain to the southeastern corner of the Project Site. Vegetation associated with this drainage network reflects primarily weedy native and non-native species described previously. The East Fork of San Luis Obispo Creek is a highly entrenched channel with members of the native riparian forest found upslope within the riparian slopes (Photograph 14 and 15). California walnut, Fremont cottonwood (Populus fremontii), western sycamore, Mexican elderberry, Coast live oak and arroyo willow are most common. Above ordinary high water the vegetation is primarily the annual grassland dominated by Italian ryegrass, slender wild oat, soft chess, bermuda grass (Cynodon dactylon), with remnant native elements, such as purple needlegrass, coyote brush, and California buttercup (Ranunculus californicus). Appendix C: Biological Resources C.8-27 Chevron Tank Farm EIR 22 VI. REGULATORY CONTEXTS Three levels of government have jurisdiction over the waters/wetlands on the Tank Farm property. These jurisdictions include the U.S. Federal government, the State of California, and San Luis Obispo County. A summary of each level of jurisdiction is presented below. A. Federal Jurisdiction 1. Clean Water Act (CWA), Section 404 As reported above, the delineation and mapping of the geographic extent of waters of the U.S., including wetlands, shows that there are waters/wetlands within the Chevron Tank Farm Project Site. Section 404 of the CWA requires authorization from the US ACOE for the discharge of dredged or fill material into all waters of the United States, including wetlands. This delineation is conditional upon a field review and final jurisdictional determination by the US ACOE, Los Angeles District. Recent decisions in the U.S. Supreme Court (i.e., Solid Waste Agency of Northern Cook County [SWANCC] v. US ACOE (531 U.S. 159, 2001) January 9, 2001; Rapanos et ux., et al. v. United States, June 19, 2006) require a careful examination and documentation of the physical location(s) and hydrologic characteristics of waters/wetlands. Particular focus is given to surface hydrologic connections to “navigable waters in fact,” and/or adjacency and thus a significant nexus to interstate commerce. As addressed in Section IV.B., federal guidance for field delineation procedures that address the Rapanos decision has been offered by the EPA and the US ACOE in a joint memorandum issued June 5, 2007. Permanent to intermittent stream flow in Tank Farm Creek and East Fork of San Luis Obispo Creek passes through and across the SLO Tank Farm site, converging immediately south of the project boundary. This reach of the East Fork then joins the main stem of San Luis Obispo Creek, where flow is perennial. San Luis Obispo Creek flows year round to the Pacific Ocean, where it enters tidal waters at the town of Avila, San Luis Obispo County. Waters/wetlands on the Project Site have direct hydrologic connection to a navigable water in fact, and therefore are regulated by CWA §404. 2. Clean Water Act, Section 401 Section 401 of the CWA addresses water quality in the nation’s waters, including wetlands. The State of California administers §401. Please see B.1 and 2 below. 3. Clean Water Act, Section 402 Section 402 of the CWA addresses the discharge of pollutants from point sources into the Nation’s surface waters. The State of California administers §402. Please see B.3 below. Appendix C: Biological Resources C.8-28 Chevron Tank Farm EIR 23 4. Endangered Species Act, Section 7 (U.S. Fish and Wildlife Service) Projects that require a CWA §404 permit are obligated to show consistency with the provisions of §7 (or §10, depending on the applicant) of the federal Endangered Species Act of 1973. The purpose of the ESA is “. . . to provide a means whereby the ecosystems upon which endangered species and threatened species depend upon may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions as set forth in subsection (a) of this section.” Section 7 requires interagency consultation to protect listed species. Under Section 7(a)(1) federal agencies are directed, in consultation with the Service, to use their resources to further the purposes of the act. Section 7(a)(2) precludes federal agencies from authorizing, funding, or carrying out any activities that are likely to jeopardize the continued existence of any listed species or result in the adverse modification of critical habitat. Section 7 of the Endangered Species Act of 1973 is administered by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Two species protected by the federal ESA is found on the SLO Tank Farm site, and both listed as “threatened.” The vernal pool fairy shrimp (Branchinecta lynchi) is found in many of the depressional and riverine features, as documented by a comprehensive survey (wet and dry seasons) by Rincon Consultants (2005). South-central California coast steelhead ESU (Oncorhynchus mykiss) is known to occur in the East Branch of San Luis Obispo Creek. Therefore, a (at minimum, informal) Section 7 consultation will be required prior to any site activities. 5. National Historic Preservation Act (NHPA), Section 106 For any projects that require a CWA §404 permit, applicants are obligated to show consistency with the provisions of §106 of the National Historic Preservation Act of 1966. Section 106 of NHPA granted legal status to historic preservation in Federal planning, decision-making, and project execution. Section 106 requires all Federal agencies to take into account the effects of their actions on historic properties, and provide a reasonable opportunity to comment on those actions and the manner in which Federal agencies are taking historic properties into account in their decisions (http://www.achp.gov/overview.html). Section 106 of the National Historic Preservation Act is administered by the State of California Historic Preservation Officer (See B.6 below). B. California State As described above, approximately 72.2 acres of waters/wetlands and/or wetland features exist at the SLO Tank Farm site. These waters/wetlands will be regulated under CWA Section 401, 402, California Department of Fish & Game, and the State Historic Preservation Officer under the authority of the National Historic Preservation Act, among others. Appendix C: Biological Resources C.8-29 Chevron Tank Farm EIR 24 1. Clean Water Act (Water Quality Certification), Section 401 Section 401 of the CWA requires that federal agencies issuing licenses or permits for construction or other activities obtain a written certification that the activity will not cause or contribute to a violation of the state’s water quality standards. After receiving the certification, the federal agency issuing the permit must include conditions in the permit to prevent the project from degrading water quality of a downstream state or tribe. The CWA's 401 certification requirement applies to many types of permits and is an important tool for states and tribes to control projects that might degrade state waters. Work involving discharges to waters/wetlands must be reviewed by the State of California Regional Water Quality Control Board in the context of the Clean Water Act 401 Water Quality Certification Program. 2. Porter-Cologne Water Quality Act The Porter-Cologne Water Quality Act was enacted in 1969 under the California Water Code §§13000 et seq. Its purpose is “. . . to preserve, enhance and restore the quality of California's water resources, and ensure their proper allocation and efficient use for the benefit of present and future generations.” The Act established the State Water Resources Control Board and nine Regional Water Quality Control Boards as the principal state agencies with the responsibility for controlling water quality in California (see B.1. above). Under the Porter-Cologne Water Quality Act, the State Board has the ultimate authority over State water rights and water quality policy; the nine regional boards oversee water quality on a day-to-day basis at the regional level by (1) determining beneficial uses of water for all bodies of water in their area; (2) establishing and enforcing water quality standards for both surface and groundwater; and (3) taking any and all actions needed to maintain the standards by controlling point and non-point sources of pollution. 3. Clean Water Act, Section 402 Work involving discharges to waters/wetlands must be reviewed by the State of California in the context of the Clean Water Act §402, which regulates discharges pollutants from point sources into surface waters under the National Pollutant Discharge Elimination System permit (NPDES) program. The NPDES program is implemented either by the EPA, or in California, by the State Water Quality Control Board. The NPDES program requires those implementing projects involving discharges to waters/wetlands to have a Stormwater Pollution Prevention Plan (SWPPP). The SWPPP is reviewed by the Regional Water Quality Control Board and the city or county in which the project takes place. The Central Coast Regional Water Quality Control Board is headquartered in San Luis Obispo. 4. Stream Bed Alteration – Section 1600 Series Permit The California Department of Fish and Game administers §§1600-1607 of the Fish & Game Code. Sections 1600-1607 address any project that will “(1) divert, obstruct, or change the natural flow or the bed, channel, or bank of any river, stream, or lake designated by the department [California Fish and Game] in which there is at any time an existing fish or wildlife resource or from which these resources derive benefit, (2) use materials from the streambeds Appendix C: Biological Resources C.8-30 Chevron Tank Farm EIR 25 designated by the department, or (3) result in the disposal or deposition of debris, waste, or other material containing crumbled, flaked, or ground pavement where it can pass in to any river, stream, or lake designated by the department” (Section 1601) (http://www.dfg.ca.gov/1600/). A 1600 series permit is required in any water or wetland with bed and bank features. On the Chevron Tank Farm Project Site, only those wetlands that occur within the riparian zone of any stream, river or lake would be regulated by DFG under the 1600 series public resource code. The only stream, river or lake features on the SLO project site are the Tank Farm Creek riverine complex and the East Fork of San Luis Obispo Creek. As such, these riverine waters/wetlands on the SLO tank farm project site are within DFG jurisdiction given by Section 1600-1616. 5. California Environmental Quality Act (CEQA) The California Environmental Quality Act, made into law in 1970, requires state and local agencies to identify significant environmental impacts of their actions, and to avoid and mitigate those impacts where feasible (California Public Resources Code §§21000-21177). Depending upon the type and extent of the project, different level(s) of environmental analysis may be required, and make take the form of an Environmental Impact Report (EIR) or Negative Declaration (ND). 6. National Historic Preservation Act, Section 106 As part of the CWA §404 permit review process, the US ACOE is obliged to review records kept by the State Historic Preservation Officer (SHPO) to determine if the proposed project will (or is likely to) impact cultural resources. In addition, if cultural resources are encountered during any work that may occur at the Property, the appropriate state agencies must be notified. 7. Regional Water Quality Control Board (RWQCB) (CWA 401) Work involving discharges to waters/wetlands needs to be reviewed by the State of California Regional Water Quality Control Board (RWQCB) in the context of the Clean Water Act 401 Water Quality Certification Program. 8. California Coastal Commission (CCC) The project area that includes the delineated waters/wetlands is not within Coastal Zone of the Pacific Ocean. Therefore, the delineation will not need to be reviewed by the California Coastal Commission. C. Local Jurisdiction - San Luis Obispo County Standard measures for building, grading and encroachment permits, including sediment and erosion control, will need to be followed to prevent inadvertent discharges to waters/wetlands. Appendix C: Biological Resources C.8-31 Chevron Tank Farm EIR 26 VII. LITERATURE CITED Avocet Environmental, Inc., September 7, 2007, Working Draft, Remedial Action Plan for Former San Luis Obispo Tank Farm, 276 Tank Farm Road, San Luis Obispo, California. Brinson, M. 1993. A hydrogeomorphic classification for wetlands. Technical Report WRP-DE-4, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS. Brinson, M., F. R. Hauer, L. C. Lee, W. L. Nutter, R. D. Rheinhardt, R. D. Smith, and Whigham, D. 1995. A guidebook for application of hydrogeomorphic assessments to riverine wetlands, Technical Report WRP-DE-11, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS. NTIS No. AD A308 365. Blasland, Bouck and Lee (BBL). 1999. Wetlands map created by BBL based on EDAW, Inc. 1999 Wetland Delineation for Unocal Tank Farm. San Luis Obispo, CA. California Department of Water Resources (CA DWR). 2005a. California Water Plan Update 2005. California Department of Water Resources. Bulletin 160-05 December 2005. California Department of Water Resources (CA DWR). 2005b. California Land and Water Use – Study Area Maps – Detailed Analysis Units. California Department of Water Resources. Available online at http://www.landwateruse.water.ca.gov/studyarea/maps.cfm. Accessed 6/6/2008. EDAW, Inc. 1999. Wetland Delineation for Unocal Tank Farm. San Luis Obispo, CA. Environmental Laboratory. 1987. U.S. Army Corps of Engineers Wetlands Delineation Manual. Technical Report Y-87-1. U.S. Army Corps of Engineers Waterways Experiment Station, Vicksburg, MS. Environmental Laboratory.. 2006. Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region. U.S. Army Corps of Engineers Wetlands Regulatory Assistance Program, Washington, DC Federal Register. 1986. Regulatory Programs of the Corps of Engineers; Final Rule. Volume 51, No. 219; 33 CFR Parts 320 through 330. Federal Register. July 13, 1994. Changes in Hydric Soils of the United States. Washington, D.C. (Hydric soil definition). Federal Register. September 18, 2002. Hydric Soils of the United States. Washington, D.C. (Hydric Soil Criteria). Flora of North America Editorial Committee (FNA). 2002. Volume 23. Magnoliophyta: Commelinidae (in part): Cyperaceae. Oxford University Press, New York, NY. Hickman, J. C., ed. 1993. The Jepson Manual: higher plants of California. University of California Press. Berkeley, Los Angeles, London. 1400 pp. Appendix C: Biological Resources C.8-32 Chevron Tank Farm EIR 27 Jenesis. 2003. State Wetland Delineation Report - Unocal’s SLO Tank Farm. San Luis Obispo, CA. Munsell Color. 2000. Munsell Soil Color Charts. Munsell Color, Macbeth Division of Kollmorgen Instruments Corp., New Windsor, NY. Natural Resources Conservation Service (NRCS). 2002. Climate Information – Wetlands Retrieval for California. Natural Resource Conservation Service. Web: http://www.wcc.nrcs.usda.gov/cgibin/getwetco.pl?state=ca accessed April 2008. Natural Resources Conservation Service (NRCS). 2006. Field Indicators of Hydric Soils in the United States, Version 6.0. G.W. Hurt, L.M. Vasilas, editors. United States Department of Agriculture (USDA), NRCS, in cooperation with the National Technical Committee for Hydric Soils, Fort Worth, TX. Reed, P. 1988. National List of Plant Species that Occur in Wetlands: California Region 0. U.S. Fish and Wildlife Service, Biological Report 88 (26.9). Rincon Consultants, Inc. 2003-2004. Unocal San Luis Obispo Tank Farm Phase I, II, III Biological Resources Studies. Union Oil Company of California. San Luis Obispo, CA. Soil Survey Staff, Natural Resources Conservation Service, United States Department of Agriculture (NRCS). 2004. Web Soil Survey – San Luis Obispo County, Coastal Part, Soil Maps Version 1, July 29, 2004. Available online at http://websoilsurvey.nrcs.usda.gov/. Accessed 6/5/2008. Soil Survey Staff, Natural Resources Conservation Service, United States Department of Agriculture (NRCS). 2008. Web Soil Survey – San Luis Obispo County, Coastal Part, Soil Data Version 4, Jan 2, 2008. Available online at http://websoilsurvey.nrcs.usda.gov/. Accessed 6/5/2008. Ted Winfield and Associates. 2001. Letter report and delineation map. Correspondence to Ms. Tiffany Welsh, U.S. Army Corps of Engineers. Nov. 29, 2001. U.S. Army Corps of Engineers (US ACOE). 1992. “Clarification and Interpretation of the 1987 Manual.” 3-92 Memorandum. U.S. Environmental Protection Agency and U.S. Army Corps of Engineers. June 5, 2007. Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States. Joint memorandum issued June 5, 2007. Washington, D.C. United States Department of Agriculture Soil Conservation Service. 1979. Soil Survey of San Luis Obispo County. Western Region Climate Center (WRCC). 2007. San Luis Obispo Polytech climate data (1971 – 2000). Internet: www.wrcc.dri.edu/cgi-bin/cliMAIN.pl?caslop+sca Accessed November 2007. Appendix C: Biological Resources C.8-33 Chevron Tank Farm EIR 28 TABLES Appendix C: Biological Resources C.8-34 Chevron Tank Farm EIR 29Table 1. Delineations of Waters of the U.S., Including Wetlands Conducted at the Chevron Tank Farm, San Luis Obispo, California. Source Date Survey Methodology Federal Wetlands (acres) “Other” Waters of the U.S. (acres) “One Parameter” Wetlands (acres) Waters/ Wetlands Supporting Special-Status Species Flags/Electronic Locations – Record? Map? Data Sheets – Delineation? Report? EDAW, Inc. Sacramento, CA 1999 Routine Wetland Delineation based on USACE 1987 Manual 57.2 1.4 -- -- No Yes Yes Yes BBL Santa Barbara, CA 1999/ 2003 Map only – synthesized from EDAW, 1999 No wetland delineation/survey was conducted 57.2 1.4 -- -- No Yes No No Jenesis Avila Beach, CA 2003 “State” Wetland Delineation based on CDFG/USFWS definition 57.2 1.4 18.75 -- No Yes Yes Yes Ted Winfield & Associates Livermore, CA 2001 Re-evaluation of jurisdictional waters of the U.S. based on EDAW, 1999 data/map and site reconnaissance survey to verify isolated wetlands Not Cited*¹ Not Cited*¹ Not Cited*¹ -- No Yes No Yes Rincon Consultants, Inc. San Luis Obispo, CA 2003 Vernal pool fairy shrimp (VPFS) wet/dry season surveys (No wetland delineation was conducted) -- -- -- -- Yes Yes No Yes WSP/Padre Associates, Inc. San Luis Obispo, CA 2007-2008 Routine Wetland Delineation based on USACE 1987 Manual (Wetland delineations were performed in new areas only) 49.0 3.9 3.4 15.82 Yes Yes Yes Yes *¹ The Ted Winfield & Associates letter-report dated November 29, 2001 includes a map depicting the re-evaluation of jurisdictional wetlands; however, the exact acreage of jurisdictional and isolated wetlands is not included in the letter-report. Appendix C: Biological ResourcesC.8-35Chevron Tank Farm EIR 30 Table 2. Waters/Wetland Areas Removed, Adjusted, or Added Based on 2007-2008 Field Observations by WSP/Padre Technical Team, Chevron Tank Farm, San Luis Obispo, California. Source Map Waters/Wetlands Number or Sample Point Waters/Wetlands Removed Boundary Adjustment(s) Waters/Wetlands Added BBL*¹ Jenesis*² WSP/Padre 1 X X 8 X X 9 X X 11 X X 12 X X 30 X X 34 X X 69 X X 70 X X 71 X X 76 X X 77 X X 78 X X 79 X X 80 X X 81 X X 82 X X 84 X X 85 X X 86 X X 100 X X Appendix C: Biological Resources C.8-36 Chevron Tank Farm EIR 31 Table 2 cont’d. Source Map Waters/Wetlands Number or Sample Point Waters/Wetlands Removed Boundary Adjustment(s) Waters/Wetlands Added BBL*¹ Jenesis*² WSP/ Padre 101 X X 105 X X 109 X X S-3/4/5 X X S-12 X X S-19 X X Small wetland between S-19 and S-20 X X S-20 X X S-23 X X S-24 X X S-25 X X S-28 X X S-32 X X S-33 X X 3 X X 4 X X 15 X X 20 X X 24 X X 31 X X 61 X X 85 X X 86 X X *¹ The BBL map and the Ted Winfield & Associates map (2001) were synthesized from the EDAW, Inc. map (1999). BBL wetland numbers listed in Table 2 correspond directly to the wetlands on the EDAW, Inc. map and the Ted Winfield & Associates map, therefore, these maps are not included above. *² The Jenesis map (2003) labels only sample points (S-19, etc.); each wetland feature is not numbered. Appendix C: Biological Resources C.8-37 Chevron Tank Farm EIR 32 Table 3. Criteria for Hydric Soils of the United States (Federal Register 2002). Hydric soil criteria: 1. All Histels except for Folistels, and Histosols except for Folists, or 2. Soils in Aquic suborders, great groups, or subgroups, Albolls suborder, Aquisalids, Historthels, and Histoturbels great groups, and Cumulic or Pachic subgroups that: a. are somewhat poorly drained and have a water table at the surface (0.0 feet) during the growing season, or b. are poorly drained or very poorly drained and have either: (1) a water table at the surface (0.0 feet) during the growing season if textures are coarse sand, sand, or fine sand in all layers within a depth of 20 inches, or (2) a water table at a depth of 0.5 foot or less during the growing season if permeability is equal to or greater than 6.0 in/hr in all layers within a depth of 20 inches, or (3) a water table at a depth of 1.0 foot or less during the growing season if permeability is less than 6.0 in/hr in any layer within a depth of 20 inches, or 3. Soils that are frequently ponded for periods of long or very long duration during the growing season or, 4. Soils that are frequently flooded for periods of long or very long duration during the growing season. Table 4. U.S. Fish & Wildlife Service plant indicator status (Reed 1988, 1993). Indicator Status Definition Obligate Wetland (OBL) Occur almost always (estimated probability > 99%) under natural conditions in wetlands. Facultative Wetland (FACW) Usually occur in wetlands (estimated probability 67%-99%), but occasionally found in non-wetlands. Facultative (FAC) Equally likely to occur in wetlands or non-wetlands (estimated probability 34%-66%). Facultative Upland (FACU) Usually occur in non-wetlands, but occasionally found in wetlands (1%-33%). Obligate Upland (UPL) Occur in wetlands in another region, but occur almost always (estimated probability > 99%) under natural conditions in non- wetlands in the region specified. No Indicator Status (NI) Insufficient information exists to assign an indicator status. Not Listed (NL) Not on the National List in any region. Appendix C: Biological Resources C.8-38 Chevron Tank Farm EIR 33 Table 5. Summary of the Distribution of Waters of the U.S. Including Wetlands and Other Wetland Features at the Chevron Tank Farm, San Luis Obispo, California. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning-glory Purple needlegrass South-Central California Coast Steelhead 1 0.07 X X 2 0.02 X X 3 0.04 X X 4 0.01 X X 5 0.07 X X X X 6 0.02 X X 7 0.04 X X 8 0.04 X X 9 0.30 X X 10 0.02 X X 11 0.05 X X 12 16.33 X X X 13 0.09 X X 14 0.03 X X 15 0.11 X X 16 0.33 X X X X Appendix C: Biological Resources C.8-39 Chevron Tank Farm EIR 34 Table 5. Cont’d. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning-glory Purple needlegrass South-Central California Coast Steelhead 17 0.14 X X X X 18 0.09 X X X X 19 0.21 X X X 20 0.00 X X 21 0.23 X X X X 22 0.01 X X X X 23 0.04 X X X X 24 0.01 X X X 25 0.07 X X X X 26 0.09 X X X X 27 0.08 X X X 28 0.02 X X X 29 0.44 X X X X 30 0.44 X X X X 31 0.01 X X 32 0.34 X X X X 33 0.53 X X X X X 34 0.64 X X X Appendix C: Biological Resources C.8-40 Chevron Tank Farm EIR 35 Table 5. Cont’d. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning- glory Purple needlegrass South-Central California Coast Steelhead 35 0.05 X X X X 36 0.03 X X X X 37 0.40 X X X X 38 0.21 X X X X 39 0.22 X X X X X 40 0.27 X X 41 0.12 X X 42 2.99 X X X X 43 6.92 X X X X 44 2.35 X X X X X 45 2.03 X X X X 46 0.14 X X X X 47 0.06 X X X X 48 0.00 X X X 49 0.07 X X X 50 1.52 X X X X 51 1.21 X X X X 52 0.18 X X X X Appendix C: Biological Resources C.8-41 Chevron Tank Farm EIR 36 Table 5. Cont’d. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning- glory Purple needlegrass South-Central California Coast Steelhead 53 0.98 X X X X 54 2.17 X X X X 55 2.59 X X X 56 0.22 X X X X 57 0.01 X X X 58 0.21 X X X X X X 59 0.23 X X X X 60 0.09 X X X X 61 0.01 X X 62 0.64 X X X 63 0.67 X X X X 64 0.44 X X X 65 1.64 X X X 66 0.07 X X 67 0.03 X X X X 68 0.03 X X X X 69 0.90 X X X X 70 2.76 X X Appendix C: Biological Resources C.8-42 Chevron Tank Farm EIR 37 Table 5. Cont’d. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning- glory Purple needlegrass South-Central California Coast Steelhead 71 0.10 X X X X 72 0.38 X X X X 73 0.08 X X 74 0.88 X X X X 75 0.75 X X X X 76 1.83 X X X X X 77 1.27 X X X X 78 0.07 X X X X 79 0.21 X X X X 80 0.47 X X X X 81 1.36 X X X 82 0.49 X X X X 83 4.24 X X X X 84 0.10 X X X X 85 0.05 X X X 86 0.02 X X X X 87 0.01 X X X 88 0.27 X X X X X Appendix C: Biological Resources C.8-43 Chevron Tank Farm EIR 38 Table 5. Cont’d. Waters/Wetlands HGM*¹ Class Waters/Wetlands Jurisdiction Special-status Species Wetland Number Area (acres) Slope/Riverine Complex Depression Riverine Federal Clean Water Act (CWA) Federal “Other” Waters” of the U.S. Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Not Under Federal CWA Jurisdiction But Which Do Support Special Status Species Vernal Pool Fairy Shrimp Congdon’s tarplant Hoover’s button-celery SLO morning- glory Purple needlegrass South-Central California Coast Steelhead 89 1.81 X X X X 90 0.31 X X X 91 0.06 X X X 92 0.09 X X X X 93 0.21 X X X X 94 0.02 X X 95 0.00 X X 96 0.01 X X 97 0.04 X X 98 0.64 X X 99 3.18 X X X X 100 0.05 X X X 101 0.01 X X 102 0.15 X X 103 0.09 X X Total acres: 72.2 31.8 36.5 3.9 49.0 3.9 3.4 15.8 31.1 63.8 1.3 14.5 0.0 3.2 *¹ Hydrogeomorphic (HGM) Class (following Brinson, 1993) Appendix C: Biological Resources C.8-44 Chevron Tank Farm EIR 39 FIGURES Appendix C: Biological Resources C.8-45 Chevron Tank Farm EIR CHEVRON SLO TANK FARM PROJECT SITE LOCATION SAN LUIS OBISPO, CALIFORNIA (FROM PADRE ASSOCIATES, INC 2007) FIGURE - 1 42 Appendix C: Biological Resources C.8-46 Chevron Tank Farm EIR CHEVRON PROPERTY AERIAL IMAGE OF CHEVRON SLO TANK FARM PROJECT SITE (FLIGHT DATE 2-4-08) FIGURE - 2 43 Appendix C: Biological Resources C.8-47 Chevron Tank Farm EIR Waters of the U.S., Including Wetlands Mapped by Winfield (2001)Figure - 344Appendix C: Biological ResourcesC.8-48 Chevron Tank Farm EIR Chevron EMC – San Luis Obispo Tank Farm Restoration and Re-development Project June 2008 Project No.0601-3281 0 450 900 1,350 1,800225 Feet Legend United States Geological Blue Line Streams Ephemeral Flow Congdon's Tarplant Hoover's Button Celery Congdon's Tarplant Hoover's Button Celery San Luis Obispo Morning Glory Waters/Wetlands Under Federal Clean Water Act (CWA) Jurisdiction Waters/Wetlands Not Under Federal CWA Jurisdiction But Which Support Special Status Species Vernal Pool Fairy Shrimp Site Boundary Waters/Wetlands Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species DISTRIBUTION OF PROTECTED PLANT AND ANIMAL SPECIES WITHIN WATERS OF THE US INCLUDING WETLANDS FIGURE - 4 45 Appendix C: Biological Resources C.8-49 Chevron Tank Farm EIR Chevron EMC – San Luis Obispo Tank Farm Restoration and Re-development Project June 2008 Project No.0601-3281 0 450 900 1,350 1,800225 Feet TANK FARM ROAD 3 42 2 8 7 6 9 1011 14 13 12 15 16 17 18 20 19 22 21 24 23 25 27 26 28 70 29 33 32 31 34 30 45 4 Legend United States Geological Blue Line Streams Ephemeral Flow Site Boundary Waters/Wetlands Under Federal Clean Water Act (CWA) Jurisdiction Waters/Wetlands Not Under Federal CWA Jurisdiction But Which Support Special Status Species 43 12 83 55 81 35 36 52 46 4748 49 50 42 56 39 40 41 37 38 89 89 60 62 5351 54 68 67 9290 80 61 88 93 65 66 64 69 63 78 77 91 98 99 84 85 86 94 95 96 100 87 59 58 57 97 75 44 76 74 73 72 71 79 82 99 1 5 101 102 103 42 Waters/Wetlands Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species WATERS OF THE US INCLUDING WETLANDS FIGURE - 5 46 Appendix C: Biological Resources C.8-50 Chevron Tank Farm EIR Chevron EMC – San Luis Obispo Tank Farm Restoration and Re-development Project June 2008 Project No.0601-3281 0 450 900 1,350 1,800225 Feet Legend Site Boundary Riverine Wetlands Closed Depressional Wetlands Flow-through Depressional Wetlands Slope/Riverine Complex United States Geological Blue Line Streams Ephemeral Flow HGM WETLAND CLASSES (FOLLOWING BRINSON, 1993; AND BRINSON et al., 1995) FIGURE - 6 47 Appendix C: Biological Resources C.8-51 Chevron Tank Farm EIR Central Coast Hydrologic Region San Luis Obispo Hydrologic Subunit THE CENTRAL COAST HYDROLOGIC REGION AND SAN LUIS OBISPO HYDROLOGIC SUBUNIT FIGURE - 7 48 Appendix C: Biological Resources C.8-52 Chevron Tank Farm EIR A-11 125.4 Ac A-5 82.3 Ac A-2 69.5 Ac A-1 41.2 Ac A-9 36.3 Ac A-26 35.5 AcA-18 33.7 Ac A-4 31.3 Ac A-13 24.9 Ac A-10 19.4 Ac A-6 14.6 Ac A-3 13.2 Ac A-25 12.7 Ac A-7 11.5 Ac A-19 7 Ac A-22 7.2 Ac A-12 6.6 Ac A-14 5 Ac B-4 6.2 Ac B-1 5.4 Ac A-8 4 Ac A-17 10 Ac A-16 7.8 Ac A-15 4.9 Ac B-3 4.2 Ac A-24 3.6 Ac B-2 3.3 Ac A-27 2.8 Ac A-21 1.3 Ac A-20 1 Ac A-23 0.5 Ac S:\GIS\1212_Chevron_Padre_SLOTF\005_Hydrology_Study\ArcMapDocuments\Catchment Map.mxd, 05/27/08 STORM WATER CATCHMENT AREAS SAN LUIS OBISPO TANK FARM SAN LUIS OBISPO, CALIFORNIA PREPARED FOR CHEVRON CORPORATION SAN LUIS OBISPO, CALIFORNIA LEGEND PROPERTY BOUNDARY STORM WATER CATCHMENT A STORM WATER CATCHMENT B OFFSITE CATCHMENT CLOSED CATCHMENT 0 800 1,600400 Feet SCALE STORMWATER CATCHMENT AREAS (AVOCET ENVIRONMENTAL 2007) FIGURE - 8 49 Appendix C: Biological Resources C.8-53 Chevron Tank Farm EIR Chevron EMC – San Luis Obispo Tank Farm Restoration and Re-development Project WATER FLOW DIRECTIONS AMONG WATERS/WETLANDS CHEVRON TANK FARM, SAN LUIS OBISPO, CA FIGURE - 9 Project No.0601-3281 0 450 900 1,350 1,800225 Feet TANK FARM ROAD 3 42 2 8 7 6 9 1011 14 13 12 15 16 17 18 20 19 22 21 24 23 25 27 26 28 70 29 33 32 31 34 30 45 4 Legend United States Geological Blue Line Streams Ephemeral Flow Site Boundary Waters/Wetlands Under Federal Clean Water Act (CWA) Jurisdiction Waters/Wetlands Not Under Federal CWA Jurisdiction But Which Support Special Status Species 43 12 83 55 81 35 36 52 46 4748 49 50 42 56 39 40 41 37 38 89 89 60 62 5351 54 68 67 9290 80 61 88 93 65 66 64 69 63 78 77 91 98 99 84 85 86 94 95 96 100 87 59 58 57 97 75 44 76 74 73 72 71 79 82 99 1 5 101 102 103 Water Flow Vector July 2008 42 Waters/Wetlands Not Under Federal CWA Jurisdiction And Which Do Not Support Special Status Species Gate Valve Twin Concrete Cow Pass Culvert Twin CMP Culverts Pipe Bubble Up Plugged Outlet Pipe 6” Iron Culvert 8” Hose Culvert Headgate 24” Iron Culvert Cage Road Three Stacked Culverts (24”, 16“ and 16” dia.) 14” Iron Culvert Headworks/ Gated Culverts Connecting 98 to San Luis Obispo Creek Acacia Creek San Luis Obispo Creek Gate valve/ Stormwater Drop in Orcutt Creek East Branch San Luis Obispo Creek 4” Iron Culvert 50 Appendix C: Biological Resources C.8-54 Chevron Tank Farm EIR 227 TK FARM RD SANTA FE RDMEISSNER LN SUBURBAN RD GRANADA DR HORIZON LNTANK F A R M R D ESPERANZA LN221169 1271271271 4 4 197 120 0 1,000 2,000 3,000500 Feet 0 300 600 900150 Meters MAPPED SOILS FOR THE SLO TANK FARM PROJECT SITE (NRCS 2004) FIGURE - 10 Soil Map Unit Descriptions 221 = Xererts-Xerolls-Urban land complex, 0 to 15 percent slopes 197 = Salinas silty clay loam, 0 to 2 percent slopes 169 = Marimel sandy clay loam, occasionally flooded 144 = Gazos - Lodo clay loams, 30 to 50 percent slopes 127 = Cropley clay, 0 to 2 percent slopes 120 = Concepcion loam, 2 to 5 percent slopes 51 Appendix C: Biological Resources C.8-55 Chevron Tank Farm EIR PHOTOGRAPHS Photograph 1. SLO Tank Farm project site is primarily open space. This photo looks southwest across wetland feature #83 (Reservoir 3) toward a line of trees along the East Fork of San Luis Obispo Creek. Photograph 2. SLO Tank Farm project site looking eastward along the northern edge of the North Marsh. Cattle graze throughout the majority of the property. Appendix C: Biological Resources C.8-56 Chevron Tank Farm EIR Photograph 3. Much of the SLO Tank Farm project site is dominated by non-native forbs and grasses. Photograph 4. Oxbow located in the south eastern portion of the site is dominated by scrub/shrub and forested plant communities. Appendix C: Biological Resources C.8-57 Chevron Tank Farm EIR Photograph 5. The East Fork of San Luis Obispo Creek is dominated by scrub-shrub or forest communities along part of the reach within the SLO Tank Farm project site. Photograph 6. Depressional wetland (#37) in old tank footprint. Non-native dominants including cocklebur (Xanthium strumarium) are in the foreground. Appendix C: Biological Resources C.8-58 Chevron Tank Farm EIR Photograph 7. North Marsh/ Tank Farm Creek slope/ riverine wetland complex at the SLO Tank Farm project site. Photograph 8. Depressional wetland features such as those in foreground persist as a result of the SLO Tank Farm project site’s long history of ranching and industrial development. Appendix C: Biological Resources C.8-59 Chevron Tank Farm EIR Photograph 9. The highest elevations on the SLO Tank Farm project site are in the northeastern portion. The slope grades generally southward and onto valley alluvium. Photograph 10. Tank Farm Road bisects the SLO Tank Farm project site. Two sets of culverts convey water southward. Appendix C: Biological Resources C.8-60 Chevron Tank Farm EIR Photograph 11. The old crude oil reservoirs were lined with various materials, and berms were installed around their perimeters to contain oil if necessary. Photograph 12. Berms that show the legacy of soil and hydrologic disturbance are present throughout the SLO Tank Farm project site. Many of these berms are remnants of historic reservoirs. Appendix C: Biological Resources C.8-61 Chevron Tank Farm EIR Photograph 13. Cattle graze across the majority of the SLO Tank Farm project site. Note ponding in foreground. Photograph 14. East Fork of San Luis Obispo Creek at the SLO Tank Farm. Native California walnuts (Juglans californica var. california) are not infrequent along the adjacent riparian corridor. Appendix C: Biological Resources C.8-62 Chevron Tank Farm EIR Photograph 15. East Fork of San Luis Obispo Creek at the SLO Tank Farm. View looking north. Photograph 16. Old water control structure in Tank Farm Creek, upgradient of the North Marsh at the SLO Tank Farm project site. Appendix C: Biological Resources C.8-63 Chevron Tank Farm EIR Photograph 17. Tank Farm Creek in winter 2007 at the SLO Tank Farm project site. Photograph 18. North Marsh at SLO Tank Farm project site (April 2008). Note dominance by native rushes (Juncus spp.) and bulrush (Schoenoplectus spp.). Appendix C: Biological Resources C.8-64 Chevron Tank Farm EIR Photograph 19. Twin concrete culverts under Tank Farm Road. Photograph 20. Headworks at south end of wetland #98 infrequently connect the southern extent of the SLO Tank Farm site with the East Fork of San Luis Obispo Creek. Appendix C: Biological Resources C.8-65 Chevron Tank Farm EIR Photograph 21. Ponding was observed in Reservoir 6 (Wetland #45) in January 2008. Appendix C: Biological Resources C.8-66 Chevron Tank Farm EIR Appendix A Correspondence between EDAW and NRCS (1999) Appendix C: Biological Resources C.8-67 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-68 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-69 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-70 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-71 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-72 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-73 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-74 Chevron Tank Farm EIR Appendix B Arid West Manual Datasheets Appendix C: Biological Resources C.8-75 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-76 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-77 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-78 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-79 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-80 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-81 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-82 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-83 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-84 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-85 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-86 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-87 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-88 Chevron Tank Farm EIR Appendix C: Biological Resources C.8-89 Chevron Tank Farm EIR Appendix C Resumes of Principal Scientists Appendix C: Biological Resources C.8-90 Chevron Tank Farm EIR Brian G. Dugas Project Manager/Biologist EDUCATION: B.S., Natural Resources Management, College of Agriculture, California Polytechnic State University, San Luis Obispo, 1993 Continued education towards M.S., Specialization: Gen. Agriculture, Emphasis: Fisheries & Wildlife Management, College of Agriculture, Food, and Environmental Sciences, California Polytechnic State University, San Luis Obispo, 2002-2007 CERTIFICATIONS: California Division of Occupational Safety and Health Administration (OSHA), 40- Hour Hazardous Waste Operations Safety Training. Cal OSHA, Annual Hazardous Materials/Waste Site Worker 8-Hour Refresher EXPERIENCE: Mr. Dugas joined Padre Associates in 1998 and has been involved with all aspects of Padre’s Environmental Science and Planning Group. Mr. Dugas has 13 years of experience in the environmental field; 11 as an environmental specialist with emphasis on biological resources impact analysis and 2 as a water quality technician. His experience includes land use planning involving preparation of environmental documents consisting of mitigated negative declarations (MND), initial studies, environmental assessments, monitoring reports, technical reports and environmental impact reports (EIR) with emphasis on biological resources. Typical job responsibilities include preliminary site and environmental impact assessment, development of site-specific mitigation strategies, multi-agency interaction and permit facilitation. Representative projects include; Conejo Valley Reservoir MND, Sacramento Central Delta/Phase Two Natural Gas Exploration Seismic Survey MND, Southern California Edison Mandalay Marine Terminal Decommissioning Project MND, Avila Beach Community Services District Marine Outfall Repair and Extension Project MND, and Plains Exploration & Production Phase IV Expansion Project EIR. Regulatory Permitting His experience includes environmental impact assessment and permitting for a variety of projects including abandonment of offshore marine terminals and associated onshore pipeline corridors within San Luis Obispo, Santa Barbara and Ventura Counties. Permitting efforts include consultation with the State Lands Commission, California Coastal Commission (Coastal Development Permit), Army Corps of Engineers (404 Permit), Regional Water Quality Control Board (401 Permit), and California Department of Fish and Game (Streambed Alteration Agreement). Such permitting efforts have also included close coordination with other responsible agencies, including Air Quality Control Districts, National Marine Fisheries Service, and the U.S. Fish and Wildlife Service. Representative projects include the Chevron- Aera Flowline Removal Project, Unocal Cojo Marine Terminal Decommissioning Project, Shell Molino Flowline Removal Project, SCE Mandalay Marine Terminal Decommissioning Project, Texaco Hollister Ranch Pipeline Abandonment Project, Avila Beach Community Services District Marine Outfall Repair and Extension Project, Duke Energy Morro Bay Marine Terminal Decommissioning Project, and the Chevron Estero Bay Marine Terminal Decommissioning Project. Appendix C: Biological Resources C.8-91 Chevron Tank Farm EIR Biological Surveys Mr. Dugas has also conducted multiple biological studies consisting of riparian habitat assessments, wetland delineations, oak tree surveys, rare plant surveys, rapid bioassessments, and special-status wildlife species surveys. Such activities have included the preparation of site-specific restoration plans and implementation and monitoring of numerous restoration projects of wetland, coastal dune, coastal scrub and desert scrub native plant habitats. Typical job responsibilities included site analysis, site preparation and the collection of site-specific plant and seed material. In addition, Mr. Dugas conducted exotic species eradication, planting and seeding of restoration areas, and annual performance criteria monitoring. Recent representative projects include a resource inventory for the City of Carpinteria Creeks Preservation Program, Unocal Point Conception Facilities Biological Assessment, Revegetation Plans for the Shell Molino East Slope and Nearshore Work Areas, Plains Exploration & Production Phase IV Expansion Project, Tank Farm Road Safety & Operational Improvements Project NES, and Wetland Assessment, and the River Road Bridge Replacement Project. Biological Monitoring Mr. Dugas has also provided mitigation monitoring services on numerous large-scale construction projects. Job responsibilities include daily monitoring and documentation of construction activities to ensure compliance with project specific conditions of approval, notifying project foreman or responsible individual of non-compliance issues and subsequent corrective measures and weekly reporting to regulatory agencies and local governmental bodies. Representative projects include the Unocal/Guadalupe Beach A2A Emergency Remediation Project, which involved daily monitoring of the project site for biologically sensitive species, such as the federally listed, threatened California red-legged frog and western snowy plover. Mr. Dugas participated as a biological monitor during the City of Thousand Oaks - Unit W & Unit F Sewer Interceptor Reconstruction Project. Job responsibilities included fish rescue and relocation of special-status reptiles during construction activities. Mr. Dugas also performed biological monitoring on behalf of the County of San Luis Obispo during the Chevron Rio-Bravo Pipeline Pigging Operation. Daily responsibilities included pre- activity surveys for San Joaquin kit fox dens and relocation of wildlife trapped within pipeline excavation areas. In summary, Mr. Dugas has conducted numerous protocol level and/or pre-construction surveys for the following species: Calif. red-legged frog, San Joaquin kit fox, arroyo toad, southwestern pond turtle, two-striped garter snake, Calif. tiger salamander, steelhead, tidewater goby, and western snowy plover. SUPPLEMENTAL TRAINING: San Luis Obispo County, San Joaquin Kit Fox Habitat Evaluation Workshop, 2006 AEP CEQA Workshop Series, San Luis Obispo, March 2005 Salmonid Restoration Federation and Urban Streams Conference, March 2003 Practical Streambank Restoration Workshop, NRCS, April 8, 2003 California Red-Legged Frog Workshop, Sacramento-Shasta Chapter of the Wildlife Society, Presented by: Norman J. Scott and Galen B. Rathbun, April 8-10, 2002 California Fish Passage Workshop, Consortium of Governmental Agencies, 2001 AFFILIATIONS Morro Coast Audubon Society Central Coast Biological Society Appendix C: Biological Resources C.8-92 Chevron Tank Farm EIR Resume JPeak Padre Resume_March08.doc - 1 - Jessica K. Peak Staff Biologist EDUCATION: B.S. Botany and Environmental Biology, Humboldt State University, 2003 CERTIFICATIONS/ WORKSHOPS: California Division Occupational Safety and Health Administration (OSHA), 40- Hour Hazardous Waste Operations and Emergency Response Safety Training Army Corps of Engineers Wetland Delineation & Management Training Program Alameda County Conservation Partnership Contra Costa Water District, Los Vaqueros Reservoir & Watershed Workshop on Biology and Management of the California red-legged frog EXPERIENCE: Ms. Peak joined Padre Associates, Inc. in August 2006. As a Staff Biologist, she has been involved in many aspects of the Environmental Sciences and Planning Group. Ms Peak has over 5 years of field experience conducting biological surveys and environmental assessments. Ms. Peak’s job responsibilities include biological resources surveys, development of site-specific mitigation strategies, biological and construction monitoring activities such as pre-construction biological surveys, pre-construction worker environmental training sessions, restoration and mitigation monitoring, multi-agency interaction, and permit facilitation. Associated with these tasks she has prepared biological and botanical resources assessments, constraints analyses, mitigation monitoring reports, site-specific mitigation and restoration plans, construction monitoring plans, and has been involved in preparation of environmental impact reports (EIR) with emphasis on biological resources.. BIOLOGICAL STUDIES: Ms. Peak has conducted numerous botanical and biological resources surveys such as special-status/rare plant surveys, special-status wildlife surveys, vegetation mapping, habitat assessments, oak tree surveys, and routine wetland delineations. Activities include site analysis, preparation and implementation of restoration projects for native plant habitats and rare plant species, site preparation and seed collection, permit facilitation, and success criteria monitoring. Recent representative projects include Chevron EMC San Luis Obispo Tank Farm Remediation and Redevelopment Project, Morro Bay Marina Renovation Project, Plains Exploration and Production Produced Water Reclamation Facility Project, San Luis Obispo County Women’s Jail Expansion Project, Roadhouse Development Bank Stabilization Project, Nipomo Community Services District Waterline Intertie Project, Chevron EMC Cojo/Point Conception Decommissioning Project, and the Oak Creek Estates Development Project. BIOLOGICAL & CONSTRUCTION MONITORING: Ms. Peak has also conducted environmental monitoring for multiple development projects. Typical job responsibilities include daily monitoring and documentation of construction activities to ensure compliance with project specifications and conditions of approval, interaction with job foreman to remedy any non- compliance issues, and weekly reporting to regulatory agencies and local government departments. Recent representative projects include Edna Valley Appendix C: Biological Resources C.8-93 Chevron Tank Farm EIR Resume JPeak Padre Resume_March08.doc - 2 - Estates Development Project, Valle Vista Development Project, Oak Shores Estates Development Project, and Exxon/Mobil Venadito Canyon Storm Damage Repair Project. PRIOR WORK EXPERIENCE: Prior to joining Padre Associates, Ms. Peak served as the associate botanist for LBJ Enterprises in Eureka, California from September 2004 to August 2006. There she conducted various botanical and biological surveys in and around Humboldt, Mendocino, and Trinity Counties. Typical job responsibilities included rare and endangered plant surveys, ethnobotanical surveys, routine wetland delineations, and terrestrial mollusk surveys. Ms. Peak served as field botanist during the 2004 field season for the Lake Tahoe Urban Biodiversity Project in South Lake Tahoe, California conducting botanical surveys in and around the Lake Tahoe Basin. Typical duties included performing line-intercept surveys, percent cover analyses, and evaluation of forest physiognomy. She also served as a restoration crew intern for the California Tahoe Conservancy in South Lake Tahoe in the fall of 1999. Her duties on the restoration crew included soil erosion control, stream environment zones and watershed restoration, re-vegetation, and restoration of public and recreational areas. In addition to field experience Ms. Peak worked as a greenhouse assistant at the Humboldt State Biological Sciences Greenhouse in 2002 and 2003. Duties included care and preservation of a large variety of plant species from around the world and overall general maintenance of the greenhouse. Ms. Peak has also participated in international field studies, completing a Tropical Ethnobotany course at the Institute for Tropical Ecology and Conservation, Bocas del Toro, Panama, in 2005. PROFESSIONAL AFFLIATIONS: California Native Plant Society California Society for Ecological Restoration California Native Grasslands Association Appendix C: Biological Resources C.8-94 Chevron Tank Farm EIR WSP Environment & Energy 2324 Eastlake Avenue East, Suite 505 Seattle, WA 98102 Tel: 206.284.7402 Email: lyndon.lee@wspgroup.com http://www.wspenvironmental.com Lyndon C. Lee, Ph.D., PWS Principal Ecologist & Vice President Ecosystem Science & Natural Resources Management Services Professional Experience Lyndon C. Lee is Principal Ecologist/Vice President with WSP Environment & Energy (WSP). In his current capacity, Lyndon co- leads the Ecosystem Science & Natural Resources Management group (ESNRM) for WSP. ESNRM includes several senior scientists who have a great deal of applied national and international experience. ESNRM specializes in wetland and river science, conservation biology, design/build approaches to ecosystem restoration, regulatory assistance, and training. In addition to waters/wetlands, ESNRM focuses its operations in many different types of ecosystems including forests, grasslands, riparian areas, urban landscapes, brownfields, and other contaminated sites. Prior to joining WSP (February, 2007), Lyndon worked as the Senior Ecosystem Ecologist for Entrix, Inc. (2006) and as Principal Ecologist & Vice President for BBL/Arcadis (2005-2006). During the period 1989 – 2004, he served as Principal Ecologist and President of L.C. Lee & Associates, Inc. (LCLA) and Director of the National Wetland Science Training Cooperative. LCLA was a small environmental consulting firm that specialized in river and wetland science, regulatory assistance, and training throughout the U.S. From 1986 to 1989, Lyndon served as the Senior Wetland Ecologist for the U.S. Environmental Protection Agency (EPA) Headquarters Office of Wetlands Protection, Washington, D.C. During this time, he was involved directly with the formulation and application of national waters/wetlands policy, applied research, and regulatory/enforcement procedures. At EPA, Dr. Lee directed a national team of EPA technical and regulatory experts who dealt with top priority waters/wetland issues throughout the U.S. He also served as the liaison from the Office of Wetlands Protection to the EPA Superfund and RCRA programs. During his tenure at EPA, Dr. Lyndon C. Lee came to WSP after working in wetland, river, and forested ecosystems, soil science, and wildlife ecology for 30 years. Currently, his interests are focused on responses of wetland, river, and forested ecosystems to perturbation; assessment of site-specific and cumulative impacts to waters/wetland ecosystem functions; design and construction of waters/wetlands ecosystem restorations; and management of the movement and fate of contaminants in waters/wetlands ecosystems. Education • Ph.D. - Ecosystem Ecology with a focus on River & Wetland Science, 1983, University of Washington • M.S. - Forest Ecology/Silviculture, 1979, University of Montana • B.S. - Forest Ecology/Botany, 1974, Tufts University and the University of Montana Registrations • Society of Wetland Scientists - Professional Wetland Scientist (#000385 - Since 1995) • Certified Sediment And Erosion Control Lead • Certified Hazwoper Appendix C: Biological Resources C.8-95 Chevron Tank Farm EIR Lyndon led the team that produced a landmark study of cumulative impacts to bottomland hardwood forests of the southeastern U.S. He also founded the National Wetland Science Training Cooperative, which he has continued to run since leaving EPA. Lyndon came to EPA from the University of Georgia Institute of Ecology, Savannah River Ecology Laboratory (SREL), Aiken, South Carolina. During the interval 1984 – 1986, he was the Research Manager of the SREL Division of Wetlands Ecology where he managed SREL’s wetland research programs at the U.S. Department of Energy's Savannah River Nuclear Facility and National Environmental Research Park. Savannah River is a principal production site for weapons-grade plutonium and many other radionuclides. SREL’s research focused on (a) assessment and monitoring of the effects of radionuclide production on riverine wetland ecosystems, (b) management of the movement and fate of radionuclide, heavy metal and organic contaminants in waters/wetlands, and (c) restoration of wetland and river ecosystems degraded by chronic thermal and/or contaminant inputs. While pursuing his graduate degrees, Lyndon spent six years researching the structure and functioning of riverine waters/wetlands and riparian forested ecosystems throughout the Pacific Northwest and Northern Rocky Mountain regions. He focused on interactions among physical and geochemical processes and development of the structure and functioning of floodplain and riparian plant communities. Between his Master’s and Ph.D. programs, (1977 – 1980) he worked as one of two Senior Habitat Ecologists for the Interagency Grizzly Team's Border Grizzly Project, Montana Forest and Range Conservation Experiment Station, Missoula, Montana. There he developed, conducted, and supervised research dealing with the definition, description, classification, protection, and restoration of grizzly bear and grey wolf habitat throughout the northern Rocky Mountains, southeastern British Columbia, and in northern Chihuahua, Mexico. Lyndon placed particular emphasis on waters/wetlands ecosystems as essential components of critical habitat for endangered bears and other wide-ranging carnivores. The scope of Lyndon’s consulting experience over the last 18 years has taken him to all areas of the U.S., Canada, Europe, Japan, and many Pacific and Caribbean islands. He has completed more than 125 contracts with federal, state, and local government agencies, private industry, research and conservation organizations, and private landowners. Dr. Lee has focused most of his efforts on the (a) application of science to the design and construction of large and small wetland and river restoration projects, and the (b) development and implementation of practical silvicultural and land-use management programs for wetlands and riverine ecosystems. Currently Lyndon’s technical and applied interests are focused on responses of wetland, river, and forested ecosystems to perturbation, assessment of site-specific and cumulative impacts to waters/wetland ecosystems, design and construction of waters/wetlands ecosystem restorations, and management of the movement and fate of contaminants in waters/wetlands ecosystems. In addition to his technical and applied work, Lyndon continues to work as a national expert on the federal Clean Water Act jurisdictional and functional assessment issues as they relate to management of waters/wetlands. In this capacity, his emphasis always has been on the application of science to federal, state, and local programs that focus on protection of aquatic ecosystems. He has a great deal of experience in U.S. federal regulatory and enforcement procedures, assessment of impacts to waters/wetlands ecosystems, and training of others in all of Appendix C: Biological Resources C.8-96 Chevron Tank Farm EIR the above. For example, since 1993, Lyndon has been one of the principal architects responsible for development and implementation of the “Hydrogeomorphic Approach” (HGM) for assessment of waters/wetlands ecosystem functions. In this regard, he has extensive practical knowledge of ecological modelling, and application of science to regulatory, enforcement, and restoration programs. Further, since 1989, Lyndon has served as a lead expert and technical team leader for the National Resources Conservation Service, and the U.S. Department of Justice (DOJ) - Environment and Natural Resources Division. Working with DOJ, Lee has helped win or settle eight major Clean Water Act cases that have been argued in three Districts of U.S. federal court, two circuit courts of appeal, and the U.S. Supreme Court. Lyndon has been active in teaching and training throughout his career. He held the position of Assistant Research Professor at the University of Georgia's Institute of Ecology while working at the Savannah River Ecology Laboratory and at EPA Headquarters. He has also served as an Adjunct Assistant Professor at both the University of South Carolina and George Mason University. While at the universities of Washington and Montana, Dr. Lee taught or assisted in teaching a variety of forestry and natural resource management courses. He also served as a principal instructor for the Montana Forest Habitat Type Short Courses, sponsored by the U.S. Forest Service Rocky Mountain Forest and Range Experiment Station. Since 1987, Dr. Lee has led over 100 training courses for EPA and several other federal, state, and local agencies and organizations through the National Wetland Science Training Cooperative. Lyndon is an active member of the scientific community. He has published two books, more than 30 refereed professional papers, and over 150 technical reports. He has presented more than 50 oral papers and seminars at professional meetings and conferences. He edited the Bulletin and served on the National Board of Directors of the Society of Wetland Scientists (SWS) for seven years. Lyndon co-founded the “SWS Student Awards Program” and endowment, and served as the Program Chairman for two national SWS meetings (Seattle, 1987 and Washington, D.C., 1988). In 1992, Dr. Lee was awarded Life Membership in the Society of Wetland Scientists. In 1995, he earned certification as a Professional Wetlands Scientist (#385). In addition to SWS, Lyndon is member of standing in the Society For Ecological Restoration (SER) and American Association for the Advancement of Science (AAAS). Appendix C: Biological Resources C.8-97 Chevron Tank Farm EIR WSP Environment & Energy 160 Franklin Street, Suite 300 Oakland, CA 94607 Tel: 510.208.3715 Email: peggy.fiedler@wspgroup.com http://www.wspenvironmental.com Peggy L. Fiedler, Ph.D., PWS Principal Botanist/Conservation Ecologist & Co-Director, Ecosystem Science & Natural Resources Management Services Professional Experience Peggy L. Fiedler, Ph.D. is Principal Botanist/Conservation Biologist and Co-Director of the Ecosystem Science & Natural Resources Management Services Group (ESNRM). Dr. Fiedler is recognized internationally as an expert in conservation science, rare plant biology and on the genus Calochortus (Liliaceae). Her primary research has focused on the demography, evolution, and systematics of Calochortus, in particular, and the biology and phylogeny of its rare species. She has coauthored treatments of this genus for the Jepson Manual: Higher Plants of California (Hickman 1993), the Flora of North America (2002), and the second edition of the Jepson Manual (in press). More recently, Dr. Fiedler has spent the last two decades researching the population biology and life history characteristics of a variety rare wetland plants in the San Francisco Bay and Golden Gate Estuary. In addition to her rare plant expertise, Dr. Fiedler is a recognized expert in California wetlands science. Under the auspices of the USEPA, Dr. Fiedler, along with two collaborators in California, developed a methodology for the classification and description of wetlands in the coastal watersheds of central and southern California. This work represents the first comprehensive inventory of wetlands in a discrete biogeographic province of the state, and serves as a model for wetland ecologists interested in documenting and protecting the rich wetland heritage of California. Under a second USEPA grant, Dr. Fiedler extended this methodology in draft form to seasonal (vernal) waters/wetlands ecosystems in the state. With her students from San Francisco State University (and subsequently), Dr. Fiedler has spent over 15 years researching Mason’s lilaeopsis (Lilaeopsis masonii [Apiaceae]), a rare plant endemic to the Sacramento-San Joaquin Delta and Golden Gate Estuary ecosystems. In the early 1990s, she authored a plant identification book on common wetland plants for the Great Valley, published by the U.S. Army Corps of Engineers (USACE), Sacramento District. Dr. Peggy L. Fiedler came to WSP after working in plant ecology and systematics and wetlands science for over 25 years. Her primary research has focused on the demography, evolution, and systematics of Calochortus, in particular, and the biology and phylogeny of its rare species. Her current interests are focused on understanding landscape level processes that generate and maintain species richness in mega diverse floras and applying this knowledge to the design of plant community types for ecosystem restoration, applying population viability models and metapopulation theory to the reintroduction of rare plant species, understanding demographic patterns of rare plants, including hybrid taxa, and improving monitoring protocols for ecosystem restoration. Education B.A., cum laude, 1976, Harvard University, Social Anthropology (Ethnobotany) (departmental honors magna cum laude) M.S., 1980, University of California, Berkeley, Wildland Resource Science (Plant Ecology) Ph.D., 1985, University of California, Berkeley Wildland Resource Science (Plant Evolutionary Ecology) Registrations • Professional Wetland Scientist, Registration #016371 Appendix C: Biological Resources C.8-98 Chevron Tank Farm EIR Prior to joining WSP Environment & Energy, Dr. Fiedler served as principal scientist at Entrix, Inc. (2006-2007), BBL (2004-2006), and at L.C. Lee & Associates, Inc. (LCLA), a small private consulting firm that specialized in waters/wetlands ecosystem restoration, regulatory assistance, and training. While at LCLA, she managed the design and permitting of several large, high-profile waters/wetlands restoration projects in the San Francisco Bay Area. The majority of the projects involved the restoration of riverine wetlands and associated riparian ecosystems. All projects included restoring habitat for endangered species (e.g., California red-legged frog, San Francisco garter snake, California tiger salamander, and steelhead). She was also engaged as a botanical consultant on a ecosystem restoration projects in the Pacific Northwest (including Alaska) and the New England States. Additional responsibilities at LCLA included providing expert testimony, development of monitoring/adaptive management plans, client liaison, project development, and staff management. Between 1987 and 2000, Dr. Fiedler served on the faculty of the Biology Department as a conservation biologist and plant evolutionary ecologist. She taught undergraduate and graduate courses in conservation biology as well as courses in general biology, plant ecology, systematic biology, organic evolution, ethnobotany, and population modeling. Dr. Fiedler also directed the graduate program in conservation biology, the first masters’ degree program of its kind in the nation. Dr. Fiedler resigned as full professor in fall 2000. In 1998, Dr. Fiedler received a Fulbright Senior Scholar Fellowship for collaborative research at Kings Park and Botanic Garden in Perth, Western Australia (now the Botanic Garden and Parks Authority). She spent six months in Western Australia working on the genus Anigozanthos (Haemodoraceae) as a model for understanding the demographic behavior of interspecific hybridization. Prior to her Fulbright fellowship, Dr. Fiedler traveled to Perth in 1985 as a guest speaker at the Fifth International Botanic Gardens Conservation Congress, and in 1983, to Trondheim, Norway, to speak at the United Nations/Norway Conference on Biodiversity. She has lectured nationally at a wide variety of venues as an invited speaker; for example, the Center for Plant Conservation conferences on rare plants (St. Louis [1993], Chicago [1999]), Ecological Society of America Symposium on Rare/Common Species (Knoxville [1994]), Institute of Ecosystem Studies Cary Conference (Millbrook [1995]), California Academy of Sciences Fellows Day (San Francisco [1989]), and at a variety of universities, including Stanford, University of California, Berkeley, and Colorado State University. Dr. Fiedler is an active member of the conservation scientific community. She has published more than 50 journal articles, book chapters, taxonomic treatments, and technical reports. She has also edited two volumes on conservation biology published by Chapman & Hall, New York (1992. Conservation Biology. The Theory and Practice of Nature Conservation, Preservation, and Management. [with S.K. Jain] and Conservation Biology. For the Coming Decade. [1998, with P.M. Kareiva]). Dr. Fiedler also wrote a popular science book entitled Rare Lilies of California, illustrated by C. Watters and published by the California Native Plant Society (1996). She served as President of the California Botanical Society from 1993- 94, and as a board member from 1987-88 and 1995-97. Dr. Fiedler also served on the editorial board for the international journal Biological Conservation from 1992 - 1998 (Associate Editor 1992-95). Currently she is Associate Editor for book reviews for the Society of Conservation Biology’s journal, Conservation Biology, a position she has held since 2000. In 1992, Dr. Fiedler was inducted as a Fellow of the California Academy of Sciences. In 1995, she received the Larry Heckard Fellowship at the Jepson Herbarium at the University of California Berkeley and was a nominee for the Pew Fellowship in Conservation and the Environment in 1995. Appendix C: Biological Resources C.8-99 Chevron Tank Farm EIR Appendix D Coordinate Location of Waters/Wetlands Under Federal Jurisdiction Appendix C: Biological Resources C.8-100 Chevron Tank Farm EIR Federal Wetland No.Area (sq ft)Acreage Latitude Longitude 9 12905.14 0.30 1207994.63149 646805.214794 10 1006.30 0.02 1208412.63159 646781.846674 11 2369.63 0.05 1208151.41645 646799.332055 12 711264.34 16.33 1206327.54818 646778.252617 23 1812.63 0.04 1206730.57558 646754.074389 29 19353.66 0.44 1205720.73787 646854.947623 30 19067.82 0.44 1205309.13205 646898.488807 31 544.45 0.01 1205328.66325 647193.269558 32 14678.79 0.34 1205304.02449 647354.429156 33 23303.66 0.53 1205421.11213 647482.027836 34 27677.49 0.64 1205025.13761 647506.941267 34 27677.49 0.64 1205076.61912 647220.475129 34 27677.49 0.64 1205073.99888 647068.752609 34 27677.49 0.64 1205093.00729 647304.712878 35 2205.22 0.05 1205003.84771 647362.461219 36 1277.49 0.03 1204958.60999 647214.747563 37 13947.09 0.32 1204932.19620 646946.337995 37 3572.29 0.08 1204853.00525 646849.909093 38 9062.77 0.21 1205177.36353 647008.968041 38 9062.77 0.21 1205168.73611 647098.048338 38 9062.77 0.21 1205207.43895 647077.831229 39 9713.70 0.22 1205297.08388 646710.460701 40 11784.24 0.27 1205453.31757 646384.303112 41 5441.54 0.12 1205400.46991 646297.127362 42 130288.55 2.99 1205027.66877 645669.658513 43 301243.23 6.92 1205012.39641 644418.447710 44 102378.78 2.35 1205322.50418 644551.757478 48 169.21 0.00 1204924.19122 645199.243735 49 2921.55 0.07 1204933.28581 645293.577671 50 66162.96 1.52 1205207.65971 645502.605707 51 52783.50 1.21 1205225.39619 645318.752034 53 42486.19 0.98 1205660.52668 645272.350923 54 94332.54 2.17 1205670.58493 645477.896106 55 113030.24 2.59 1205833.20230 645808.729053 56 9450.32 0.22 1205516.24594 645984.254966 57 625.67 0.01 1206137.43773 645875.122313 58 9216.31 0.21 1206198.80858 645986.439719 63 7331.19 0.17 1206493.75481 645756.209030 65 71527.66 1.64 1206155.77444 645428.618450 74 38157.77 0.88 1206600.70816 644182.348030 75 32785.36 0.75 1207208.81814 644182.548508 76 79598.34 1.83 1206641.04072 644801.646160 89 79056.73 1.81 1208381.38023 645695.842412 93 8996.99 0.21 1209484.92288 645930.334271 94 1003.76 0.02 1208269.72035 645041.538818 95 67.55 0.00 1208190.41700 645207.418391 96 294.04 0.01 1207997.46303 645212.141675 97 1840.63 0.04 1207990.08516 644890.508626 98 27927.43 0.64 1207386.70887 644111.499335 99 138545.86 1.72 1208296.68253 644753.109753 Appendix C: Biological Resources C.8-101 Chevron Tank Farm EIR Reference 14 22250 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 328 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401 [EPA–HQ–OW–2018–0149; FRL–10004–88– OW] RIN 2040–AF75 The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ AGENCY: Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency and the Department of the Army are publishing a final rule defining the scope of waters federally regulated under the Clean Water Act. The Navigable Waters Protection Rule is the second step in a comprehensive, two- step process intended to review and revise the definition of ‘‘waters of the United States’’ consistent with the Executive Order signed on February 28, 2017, ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ Once effective, it replaces the rule published on October 22, 2019. This final rule implements the overall objective of the Clean Water Act to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water resources. This final definition increases the predictability and consistency of Clean Water Act programs by clarifying the scope of ‘‘waters of the United States’’ federally regulated under the Act. DATES: This rule is effective on June 22, 2020. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–OW–2018–0149. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Michael McDavit, Oceans, Wetlands, and Communities Division, Office of Water (4504–T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566–2465; email address: CWAwotus@epa.gov; or Jennifer A. Moyer, Regulatory Community of Practice (CECW–CO–R), U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; telephone number: (202) 761–5903; email address: USACE_CWA_Rule@ usace.army.mil. SUPPLEMENTARY INFORMATION: Table of Contents I. General Information A. Where can I find information related to this rulemaking? B. What action are the agencies taking? C. What is the agencies’ authority for taking this action? II. Background A. The Final Rule B. History of This Rulemaking 1. The Clean Water Act 2. Regulatory History 3. U.S. Supreme Court Decisions 4. The 2015 Rule C. Executive Order 13778 and the ‘‘Step One’’ Rulemaking D. Summary of Stakeholder Outreach and the ‘‘Step Two’’ Rulemaking E. Overview of Legal Construct for the Final Rule 1. Statutory Framework 2. U.S. Supreme Court Precedent 3. Principles and Considerations F. Summary of Final Rule as Compared to the 1986 Regulations Recodified in the 2019 Rule and the 2015 Rule G. Existing Guidance III. Definition of ‘‘Waters of the United States’’ A. Key Terms and Concepts 1. Typical Year 2. Perennial, Intermittent, and Ephemeral 3. Breaks B. Territorial Seas and Traditional Navigable Waters C. Interstate Waters D. Tributaries E. Ditches F. Lakes and Ponds, and Impoundments of Jurisdictional Waters G. Adjacent Wetlands H. Waters and Features That Are Not Waters of the United States I. Placement of the Definition of ‘‘Waters of the United States’’ in the Code of Federal Regulations IV. State, Tribal, and Federal Agency Datasets of Waters of the United States V. Overview of the Effects of the Rule and Supporting Analyses VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act I. General Information A. Where can I find information related to this rulemaking? 1. Docket. An official public docket for this action has been established under Docket ID No. EPA–HQ–OW– 2018–0149. The official public docket consists of the documents specifically referenced in this action and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is (202) 566–2426. A reasonable fee will be charged for copies. 2. Electronic Access. You may access this Federal Register document electronically under the ‘‘Federal Register’’ listings at http:// www.regulations.gov. An electronic version of the public docket is available through EPA’s electronic public docket and comment system, EPA Dockets. You may access EPA Dockets at http:// www.regulations.gov to view public comments as they are submitted and posted, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically, including the economic and regulatory analyses for the final rule. For additional information about VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22251 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations EPA’s public docket, visit the EPA Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the Docket Facility. B. What action are the agencies taking? In this notice, the agencies are publishing a final rule defining ‘‘waters of the United States’’ in 33 CFR 328.3 and 40 CFR 120.2. C. What is the agencies’ authority for taking this action? The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311, 401, 402, 404, and 501. II. Background A. The Final Rule The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army or Corps) (together, ‘‘the agencies’’) are publishing the Navigable Waters Protection Rule defining the scope of waters subject to federal regulation under the Clean Water Act (CWA or the Act), in light of the U.S. Supreme Court cases in United States v. Riverside Bayview Homes (Riverside Bayview), Solid Waste Agency of Northern Cook County v. United States (SWANCC), and Rapanos v. United States (Rapanos), and consistent with Executive Order 13778, signed on February 28, 2017, entitled ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ In this final rule, the agencies interpret the term ‘‘waters of the United States’’ to encompass: The territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters. Paragraph (a) of the final rule identifies four categories of waters that are ‘‘waters of the United States.’’ These waters are referred to as ‘‘jurisdictional’’ in this notice and in the regulatory text. Paragraph (b) of the final rule identifies those waters and features that are excluded from the definition of ‘‘waters of the United States.’’ These waters are referred to as ‘‘non- jurisdictional’’ or ‘‘excluded’’ in this notice and as ‘‘non-jurisdictional’’ in the regulatory text. Paragraph (c) of the final rule defines applicable terms. As a baseline concept, this final rule recognizes that waters of the United States are waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are waters of the United States. The final rule includes the agencies’ longstanding category of the territorial seas and traditional navigable waters. A ‘‘tributary’’ is defined in the final rule as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to be perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term ‘‘tributary’’ includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch is perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. The final rule defines ‘‘lakes and ponds, and impoundments of jurisdictional waters’’ as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland. The agencies note that to be jurisdictional, an ‘‘impoundment of a jurisdictional water’’ must be an impoundment of a territorial sea or traditional navigable water, tributary, jurisdictional lake or pond, or an adjacent wetland, and must meet the conditions in paragraph (c)(6) of the final rule. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment. The final rule defines ‘‘adjacent wetlands’’ as wetlands that abut a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water; are inundated by flooding from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water in a typical year; are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by a natural berm, bank, dune, or similar natural feature; or are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrological surface connection to the territorial sea or traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. ‘‘Abut’’ means when a wetland touches a territorial sea, traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water at least at one point or side. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. The final rule excludes from the definition of ‘‘waters of the United States’’ all waters or features not mentioned above. In addition to this general exclusion, the final rule specifically clarifies that waters of the United States do not include the following: •Groundwater, including groundwater drained through subsurface drainage systems; •ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools; •diffuse stormwater runoff and directional sheet flow over upland; •ditches that are not traditional navigable waters, tributaries, or that are VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22252 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 1 The FWPCA is commonly referred to as the CWA following the 1977 amendments to the FWPCA. Public Law 95–217, 91 Stat. 1566 (1977). For ease of reference, the agencies will generally refer to the FWPCA in this notice as the CWA or the Act. 2 The term ‘‘navigable water of the United States’’ is a term of art used to refer to waters subject to federal jurisdiction under the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with the phrase ‘‘waters of the United States’’ under the CWA, see id., and the general term ‘‘navigable waters’’ has different meanings depending on the context of the statute in which it is used. See, e.g., PPL Montana, LLC v. Montana, 565 U.S. 576, 591– 93 (2012). 3 33 U.S.C. 1370 also prohibits authorized States from adopting any limitations, prohibitions, or not constructed in adjacent wetlands, subject to certain limitations; •prior converted cropland; •artificially irrigated areas that would revert to upland if artificial irrigation ceases; •artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters; •water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel; •stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run- off; •groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and •waste treatment systems. In addition, the agencies have defined the terms ‘‘upland,’’ ‘‘prior converted cropland,’’ and ‘‘waste treatment system’’ to improve regulatory predictability and clarity. To develop this revised definition of ‘‘waters of the United States,’’ the agencies looked to the text and structure of the CWA, as informed by its legislative history and Supreme Court guidance, and took into account the agencies’ expertise, policy choices, and scientific principles. This final rule presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas. This definition strikes a reasonable and appropriate balance between Federal and State waters and carries out Congress’ overall objective to restore and maintain the integrity of the nation’s waters in a manner that preserves the traditional sovereignty of States over their own land and water resources. The final rule also provides clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. This final rule is intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution. B. History of This Rulemaking 1. The Clean Water Act Congress amended the Federal Water Pollution Control Act (FWPCA), or the CWA as it is commonly called,1 in 1972 to address longstanding concerns regarding the quality of the nation’s waters and the federal government’s ability to address those concerns under existing law. Prior to 1972, the ability to control and redress water pollution in the nation’s waters largely fell to the Corps under the Rivers and Harbors Act of 1899 (RHA). While much of that statute focused on restricting obstructions to navigation on the nation’s major waterways, section 13 of the RHA made it unlawful to discharge refuse ‘‘into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.’’2 33 U.S.C. 407. Congress had also enacted the Water Pollution Control Act of 1948, Public Law 80–845, 62 Stat. 1155 (June 30, 1948), to address interstate water pollution, and subsequently amended that statute in 1956 (giving the statute its current formal name), 1961, and 1965. The early versions of the CWA promoted the development of pollution abatement programs, required States to develop water quality standards, and authorized the Federal government to bring enforcement actions to abate water pollution. These early statutory efforts, however, proved inadequate to address the decline in the quality of the nation’s waters, see City of Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed a ‘‘total restructuring’’ and ‘‘complete rewriting’’ of the existing statutory framework in 1972, id. at 317 (quoting legislative history of 1972 amendments). That restructuring resulted in the enactment of a comprehensive scheme (including voluntary as well as regulatory programs) designed to prevent, reduce, and eliminate pollution in the nation’s waters generally, and to regulate the discharge of pollutants into navigable waters specifically. See, e.g., S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) (noting that ‘‘the Act does not stop at controlling the ‘addition of pollutants,’ but deals with ‘pollution’ generally’’). The objective of the new statutory scheme was ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. 1251(a). In order to meet that objective, Congress declared two national goals: (1) ‘‘that the discharge of pollutants into the navigable waters be eliminated by 1985’’; and (2) ‘‘that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983 . . . .’’ Id. at 1251(a)(1)–(2). Congress also established several key policies that direct the work of the agencies to effectuate those goals. For example, Congress declared as a national policy ‘‘that the discharge of toxic pollutants in toxic amounts be prohibited; . . . that Federal financial assistance be provided to construct publicly owned waste treatment works; . . . that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; . . . [and] that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.’’ 33 U.S.C. 1251(a)(3)–(7). Congress provided a major role for the States in implementing the CWA, balancing the preservation of the traditional power of States to regulate land and water resources within their borders with the need for a national water quality regulation. For example, the statute highlighted ‘‘the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’’ and ‘‘to plan the development and use . . . of land and water resources.’’ 33 U.S.C. 1251(b). Congress also declared as a national policy that States manage the major construction grant program and implement the core permitting programs authorized by the statute, among other responsibilities. Id. Congress added that ‘‘[e]xcept as expressly provided in this Act, nothing in this Act shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.’’ Id. at 1370.3 Congress VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22253 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations standards that are less stringent than required by the CWA. 4 Members of Congress were aware when they drafted the 1972 CWA amendments that different types of the Nation’s waters would be subject to different degrees of federal control. For instance, in House debate regarding a proposed and ultimately failed amendment to prohibit the discharge of pollutants to groundwater in addition to navigable waters, Representative Don H. Clausen stated, ‘‘Mr. Chairman, in the early deliberations within the committee which resulted in the introduction of H.R. 11896, a provision for ground waters . . . was thoroughly reviewed and it was determined by the committee that there was not sufficient information on ground waters to justify the types of controls that are required for navigable waters .... I refer the gentleman to the objectives of this act as stated in section 101(a). The objective of this act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. I call your attention to the fact that this does not say the Nation’s [‘]navigable waters,’ ‘interstate waters,’ or ‘intrastate waters.’ It just says ‘waters.’ This includes ground waters.’’ 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972). pledged the Federal government to provide technical support and financial aid to the States ‘‘in connection with the prevention, reduction, and elimination of pollution.’’ Id. at 1251(b). To carry out these policies, Congress broadly defined ‘‘pollution’’ to mean ‘‘the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,’’ 33 U.S.C. 1362(19), in keeping with the objective of the Act ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ Id. at 1251(a). Congress then crafted a non-regulatory statutory framework to provide technical and financial assistance to the States to prevent, reduce, and eliminate pollution in the nation’s waters generally. For example, section 105 of the Act, ‘‘Grants for research and development,’’ authorized the EPA ‘‘to make grants to any State, municipality, or intermunicipal or interstate agency for the purpose of assisting in the development of any project which will demonstrate a new or improved method of preventing, reducing, and eliminating the discharge into any waters of pollutants from sewers which carry storm water or both storm water and pollutants.’’ Id. at 1255(a)(1) (emphasis added). Section 105 also authorized the EPA ‘‘to make grants to any State or States or interstate agency to demonstrate, in river basins or portions thereof, advanced treatment and environmental enhancement techniques to control pollution from all sources . . . including nonpoint sources, . . . [and] . . . to carry out the purposes of section 301 of this Act . . . for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.’’ Id. at 1255(b)–(c) (emphasis added); see also id. at 1256(a) (authorizing the EPA to issue ‘‘grants to States and to interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution’’). Section 108, ‘‘Pollution control in the Great Lakes,’’ authorized the EPA to enter into agreements with any State to develop plans for the ‘‘elimination or control of pollution, within all or any part of the watersheds of the Great Lakes.’’ 33 U.S.C. 1258(a) (emphasis added); see also id. at 1268(a)(3)(C) (defining the ‘‘Great Lakes System’’ as ‘‘all the streams, rivers, lakes, and other bodies of water within the drainage basin of the Great Lakes’’) (emphasis added). Similar broad pollution control programs were created for other major watersheds, including, for example, the Chesapeake Bay, see id. at 1267(a)(3), Long Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain, see id. at 1270(g)(2). Some commenters noted that the Great Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain are waters of the United States to which regulatory programs apply, and that the purpose of the technical assistance and grants in the cited sections is to assist states and others in achieving the requirements of the Act. The agencies agree that these waters are waters of the United States, but the emphasized language in the cited provisions above makes clear that these provisions address all bodies of water in the watersheds of the Great Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain, regardless of the jurisdictional status of those waters. In addition to the Act’s non-regulatory measures to control pollution of the nation’s waters generally, Congress created a federal regulatory permitting program designed to address the discharge of pollutants into a subset of those waters identified as ‘‘navigable waters,’’ defined as ‘‘the waters of the United States,’’ 33 U.S.C. 1362(7). Section 301 contains the key regulatory mechanism: ‘‘Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.’’ Id. at 1311(a). A ‘‘discharge of a pollutant’’ is defined to include ‘‘any addition of any pollutant to navigable waters from any point source,’’ defined to mean ‘‘any discernible, confined and discrete conveyance’’ such as a pipe or ditch. Id. at 1362(12), (14). The term ‘‘pollutant’’ means ‘‘dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.’’ Id. at 1362(6). Thus, it is unlawful to discharge pollutants into the ‘‘waters of the United States’’ from a point source unless the discharge is in compliance with certain enumerated sections of the CWA, including obtaining authorization pursuant to the section 402 National Pollutant Discharge Elimination System (NPDES) permit program or the section 404 dredged or fill material permit program. See id. at 1342, 1344. Congress therefore intended to achieve the Act’s objective ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’’ by addressing pollution of all waters via non-regulatory means and federally regulating the discharge of pollutants to the subset of waters identified as ‘‘navigable waters.’’4 Many commenters on this rulemaking agreed with this summary of the CWA, stating that it accurately characterizes the full scope of the Act and the thoughtful, holistic approach Congress enacted to address water pollution in this country. Many commenters stated that Congress developed both regulatory and non-regulatory approaches for addressing water pollution, whereby ‘‘navigable waters’’ are subject to federal regulatory requirements under the CWA but many other classes of the ‘‘nation’s waters’’ are not. Some commenters disagreed that the CWA distinguishes between the ‘‘nation’s waters’’ and a subset of those waters known as the ‘‘navigable waters.’’ Many of these commenters suggested that the agencies’ interpretation is not supported by the text or structure of the Act and is based instead on mischaracterizations of the Act’s provisions. Some commenters argued that the two terms are synonymous under the Act, and others stated that the non-regulatory provisions of the CWA were intended to complement the regulatory requirements applicable to waters of the United States, as opposed to addressing a separate category of waters. Fundamental principles of statutory interpretation support the agencies’ recognition of a distinction between the ‘‘nation’s waters’’ and ‘‘navigable waters.’’ As the Supreme Court has observed, ‘‘[w]e assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.’’ Bailey v. United States, 516 U.S. 137, 146 (1995) VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22254 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 5 Three States (Massachusetts, New Hampshire, and New Mexico) do not currently administer any part of the CWA section 402 program. 6 For convenience, the agencies generally refer to the Corps’ regulations throughout this notice at 33 CFR 328.3. The EPA’s codification of the definition of ‘‘waters of the United States’’ is found at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to Part 300. This final rule also codifies the definition of ‘‘waters of the United States’’ in a new section 120.2. (recognizing the canon of statutory construction against superfluity). Further, ‘‘the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’’ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks and citation omitted); see also United Sav. Ass’n of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (‘‘Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear[.]’’) (citation omitted). Here, the non- regulatory sections of the CWA reveal Congress’ intent to restore and maintain the integrity of the nation’s waters using federal assistance to support State and local partnerships to control pollution in the nation’s waters and a federal regulatory prohibition on the discharge of pollutants to the navigable waters. If Congress had intended the terms to be synonymous, it would have used identical terminology. Instead, Congress chose to use separate terms, and the agencies are instructed by the Supreme Court to presume Congress did so intentionally. Under the enacted statutory scheme, the States are primarily responsible for developing water quality standards for waters of the United States within their borders and reporting on the condition of those waters to the EPA every two years. 33 U.S.C. 1313, 1315. States must develop total maximum daily loads (TMDLs) for waters that are not meeting established water quality standards and must submit those TMDLs to the EPA for approval. Id. at 1313(d). States also have authority to issue water quality certifications or waive certification for every federal permit or license issued within their borders that may result in a discharge to navigable waters. Id. at 1341. These same regulatory authorities can be assumed by Indian tribes under section 518 of the CWA, which authorizes the EPA to treat eligible Indian tribes with reservations in a manner similar to States for a variety of purposes, including administering each of the principal CWA regulatory programs. 33 U.S.C. 1377(e). In addition, States and Tribes retain authority to protect and manage the use of those waters that are not navigable waters under the CWA. See, e.g., id. at 1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven States administer portions of the CWA section 402 permit program for those waters of the United States within their boundaries,5 and two States (Michigan and New Jersey) administer the section 404 permit program for those waters that are assumable by States pursuant to section 404(g). Several additional states are exploring the possibility of assuming the section 404 permit program. At present, no Tribes administer the section 402 or 404 programs, although some are exploring the possibility. For additional information regarding State and tribal programs, see the Resource and Programmatic Assessment for the final rule. 2. Regulatory History In May 1973, the EPA issued its first set of regulations to implement the new NPDES permit program established in the 1972 CWA amendments. Those regulations defined the phrase ‘‘navigable waters’’ as: •All navigable waters of the United States; •Tributaries of navigable waters of the United States; •Interstate waters; •Intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; •Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce; and •Intrastate lakes, rivers, and streams which are utilized for industrial purposes by industries in interstate commerce. 38 FR 13528, 13529 (May 22, 1973) (codified at 40 CFR 125.1 (1973)). In 1974, the Corps issued its first set of regulations defining ‘‘waters of the United States’’ for the purpose of implementing section 404 of the CWA as well as sections 9, 10, 11, 13, and 14 of the RHA. These regulations reaffirmed the Corps’ view that its dredged and fill jurisdiction under section 404 was the same as its traditional jurisdiction under the RHA. See 39 FR 12115, 12119 (Apr. 3, 1974) (codified at 33 CFR 209.120). Specifically, the Corps defined the ‘‘waters of the United States’’ as waters that ‘‘are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.’’ Id. Environmental organizations challenged the Corps’ 1974 regulation in the U.S. District Court for the District of Columbia, arguing that the Corps’ definition of ‘‘navigable waters’’ was inadequate because it did not include tributaries or coastal marshes above the mean high tide mark or wetlands above the ordinary high water mark. The District Court held that the term ‘‘navigable waters’’ is not limited to the traditional tests of navigability and ordered the Corps to revoke its definition and publish a new one ‘‘clearly recognizing the full regulatory mandate of the Water Act.’’ Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975). In response to this decision, the Corps issued interim regulations in 1975 that defined the term ‘‘navigable waters’’ to include periodically inundated coastal wetlands contiguous with or adjacent to navigable waters, periodically inundated freshwater wetlands contiguous with or adjacent to navigable waters, and, as in the EPA’s 1973 regulations, certain intrastate waters based on non-transportation impacts on interstate commerce. The Corps revised the definition in 1977 to encompass traditional navigable waters, tributaries to navigable waters, interstate waters, adjacent wetlands to those categories of waters, and ‘‘[a]ll other waters’’ the ‘‘degradation or destruction of which could affect interstate commerce.’’ 42 FR 37122, 37144 (Jul. 19, 1977). The EPA and the Corps have maintained separate regulations defining the statutory term ‘‘waters of the United States,’’ but the text of the regulations has been virtually identical starting in 1986.6 In 1986, for example, the Corps consolidated and recodified its regulations to align with clarifications that the EPA had previously promulgated. See 51 FR 41206 (Nov. 13, 1986). While the Corps stated in 1986 that the recodified regulation neither reduced nor expanded jurisdiction, its previous exclusion for ditches was moved from the regulatory text to the final rule preamble. Id. at 41216–17. And the Corps added to the preamble what later became known as the ‘‘Migratory Bird Rule,’’ which claimed jurisdiction over any waters which are or may be used by birds protected by migratory bird treaties, waters which may be used as habitat for birds flying across state lines, waters which may be used by endangered species, and waters used to VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22255 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 7 ‘‘Traditional navigable waters’’ (or waters that are traditionally understood as navigable) refers to all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide. 8 Title XII of the Food Security Act of 1985, as amended, encourages participants in USDA programs to adopt land management measures by linking eligibility for USDA program benefits to farming practices on highly erodible land and wetlands (i.e., the wetland conservation provisions). USDA policy guidance regarding implementation of the wetland conservation provisions is found in the current edition of the Natural Resource Conservation Service National Food Security Act Manual (NFSAM), including the procedures for how to delineate wetlands and make wetland determinations in accordance with Subpart C of 7 CFR part 12. Due to the unique statutory provisions of the FSA, USDA wetland determinations may identify certain areas as exempt under the 1985 Act but remain subject to the requirements of the CWA. To avoid potential confusion, USDA clearly informs program participants that USDA wetland determinations are for purposes of implementing the wetland conservation provisions only, and that participants should contact the Corps for clarification as to whether a particular activity will require a CWA section 404 permit. 9 Natural Resources Conservation Service and U.S. Army Corps of Engineers. Memorandum to the Field on Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and section 404 of the Clean Water Act (Feb. 25, 2005), available at https://usace.contentdm. oclc.org/utils/getfile/collection/p16021coll11/id/ 2508. irrigate crops sold in interstate commerce. Id. at 41217. The 1986 regulatory text identified the following as waters of the United States: •All traditional navigable waters,7 interstate waters, and the territorial seas; •All impoundments of jurisdictional waters; •All ‘‘other waters’’ such as lakes, ponds, and sloughs the ‘‘use, degradation or destruction of which could affect interstate or foreign commerce’’; •Tributaries of traditional navigable waters, interstate waters, impoundments, or ‘‘other waters’’; and, •Wetlands adjacent to traditional navigable waters, interstate waters, the territorial seas, impoundments, tributaries, or ‘‘other waters’’ (other than waters that are themselves wetlands). 33 CFR 328.3(a)(1)–(7) (1987). The 1986 regulation also excluded ‘‘waste treatment systems’’ from the definition of ‘‘waters of the United States,’’ consistent with the EPA’s regulatory definition. Id. at 328.3 (a)(7), (b) (1987); see also 44 FR 32854 (June 7, 1979). On August 25, 1993, the agencies amended the regulatory definition of ‘‘waters of the United States’’ to categorically exclude ‘‘prior converted croplands.’’ 58 FR 45008, 45031 (Aug. 25, 1993) (‘‘1993 Rule’’) (codified at 33 CFR 328.3(a)(8) (1994)). The stated purpose of the amendment was to promote ‘‘consistency among various federal programs affecting wetlands,’’ in particular the Food Security Act of 1985 (FSA) programs implemented by the U.S. Department of Agriculture (USDA) and the CWA programs implemented by the agencies.8 58 FR 45031. The agencies did not include a definition of ‘‘prior converted cropland’’ in the text of the Code of Federal Regulations but noted in the preamble to the 1993 Rule that the term was defined at that time by the USDA National Food Security Act Manual (NFSAM). Id. The agencies at that time also declined to establish regulatory text specifying when the prior converted cropland designation is no longer applicable. In the preamble to the 1993 Rule, the agencies stated that ‘‘[t]he Corps and EPA will use the [Natural Resources Conservation Service’s] provisions on ‘abandonment,’ thereby ensuring that PC cropland that is abandoned within the meaning of those provisions and which exhibit[s] wetlands characteristics will be considered wetlands subject to Section 404 regulation.’’ Id. at 45034. The agencies summarized these abandonment provisions by explaining that prior converted cropland which meets wetland criteria is considered to be abandoned unless: At least once in every five years the area has been used for the production of an agricultural commodity, or the area has been used and will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes, or pasture production. Id. Congress amended the FSA wetland conservation provisions in 1996 to state that USDA certifications of eligibility for program benefits (e.g., determinations by the Natural Resources Conservation Service (NRCS) that particular areas constitute prior converted cropland) ‘‘shall remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification by the Secretary [of Agriculture].’’ Public Law 104–127, 322(a)(4), 110 Stat. 888 (1996); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the 1996 amendments designate as prior converted cropland those areas that may not have qualified for the CWA exclusion under the abandonment principles from the 1993 preamble, so long as such areas remain in agricultural use. The agencies did not update their prior converted cropland regulations for purposes of the CWA following the 1996 amendments to wetland conservation provisions of the FSA, as those regulations neither defined prior converted cropland nor specified when a valid prior converted cropland determination might cease to be valid. However, in 2005, the Army and USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an effort to again align the CWA section 404 program with the FSA amendments.9 The 2005 Memorandum provided that a ‘‘certified [prior converted] determination made by [USDA] remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural use, the [prior converted] determination is no longer applicable and a new wetland determination is required for CWA purposes.’’ 2005 Memorandum at 4. The 2005 Memorandum did not clearly address the abandonment principle that the agencies had been implementing since the 1993 rulemaking. The change in use policy was also never promulgated as a rule and was declared unlawful by one district court because it effectively modified the 1993 preamble language without any rulemaking process. New Hope Power Co. v. U.S. Army Corps of Eng’rs, 746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010). 3. U.S. Supreme Court Decisions From the earliest rulemaking efforts following adoption of the 1972 CWA amendments, to the agencies’ most recent attempt to define ‘‘waters of the United States’’ in 2015, the sparse statutory definition has spurred substantial litigation testing the meaning of the phrase. Hundreds of cases and dozens of courts have attempted to discern the intent of Congress when crafting the phrase. See, e.g., Rapanos v. United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality) (briefly summarizing case history). The federal courts have established different analytical frameworks to interpret the phrase, and the applicable test may differ from State to State. See, e.g., Memorandum from Dick Pedersen, President of the Environmental Council of the States (ECOS) of September 11, 2014, Concerning Waters of the United States under the Act at 2–23 (2014) (hereinafter, the ‘‘ECOS Memorandum’’), available at http:// acoel.org/file.axd?file=2014%2f9%2f Waters+of+the+U+S+Final+9_11_14.pdf (summarizing case history following Rapanos). As part of this complex litigation history, three key U.S. Supreme Court decisions have interpreted the term VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22256 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 10 See U.S. EPA and U.S. Army Corps of Engineers. Legal Memoranda Regarding Solid Waste Agency of Northern Cook County (SWANCC) v. United States (Jan. 15, 2003), available at https:// www.epa.gov/sites/production/files/2016-04/ documents/swancc_guidance_jan_03.pdf. 11 See U.S. EPA and U.S. Army Corps of Engineers. Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States at 1 (Dec. 2, 2008) (‘‘Rapanos Guidance’’), available at https:// www.epa.gov/sites/production/files/2016-02/ documents/cwa_jurisdiction_following_ rapanos120208.pdf. ‘‘waters of the United States’’ and its implementing regulations and serve as guideposts for the agencies’ interpretation of the phrase ‘‘waters of the United States.’’ In 1985, the Supreme Court deferred to the Corps’ assertion of jurisdiction over wetlands actually abutting a traditional navigable water in Michigan, stating that adjacent wetlands may be regulated as waters of the United States because they are ‘‘inseparably bound up’’ with navigable waters and ‘‘in the majority of cases’’ have ‘‘significant effects on water quality and the aquatic ecosystem’’ in those waters. United States v. Riverside Bayview Homes, 474 U.S. 121, 131–35 & n.9 (1985). The Court recognized that ‘‘[i]n determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins .... Where on this continuum to find the limit of ‘waters’ is far from obvious.’’ Id. at 132. The Court acknowledged the ‘‘inherent difficulties of defining precise bounds to regulable waters,’’ and deferred to the agencies’ interpretation that the close ecological relationship between adjacent wetlands and traditional navigable waters provided a legal justification for treating wetlands as waters. Id. at 134. The Court also ‘‘conclude[d] that a definition of ‘waters of the United States’ encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.’’ Id. at 135. The Supreme Court again addressed the definition of ‘‘waters of the United States’’ in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the Court rejected a claim of federal jurisdiction over nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters, noting that the term ‘‘navigable’’ must be given meaning within the context and application of the statute. Id. The Court held that interpreting the statute to extend to nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters would invoke the outer limits of Congress’ power under the Commerce Clause. Id. at 172. Where an administrative interpretation of a statute presses against the outer limits of Congress’ constitutional authority, the Court explained, it expects a clear statement from Congress that it intended that result, and even more so when the broad interpretation authorizes federal encroachment upon a traditional State power. Id. The CWA contains no such clear statement. Id. at 174. In January 2003, the EPA and the Corps issued joint guidance interpreting the Supreme Court decision in SWANCC.10 The guidance indicated that SWANCC focused on nonnavigable, isolated, intrastate waters, and called for field staff to coordinate with their respective Corps or EPA Headquarters on jurisdictional determinations that asserted jurisdiction over such waters. The agencies at that time focused their interpretation of SWANCC to its facts, and applied the decision narrowly as restricting the exercise of federal jurisdiction solely based on the Migratory Bird Rule. The Court most recently interpreted the term ‘‘waters of the United States’’ in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos involved two consolidated cases in which the CWA had been applied to wetlands located near man-made ditches that were ultimately connected to traditional navigable waters. All members of the Court agreed that the term ‘‘waters of the United States’’ encompasses some waters that are not navigable in the traditional sense. A four-Justice plurality interpreted the term ‘‘waters of the United States’’ to ‘‘include[] only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’’’ Rapanos, 547 U.S. at 739 (Scalia, J., plurality) (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)), and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’ Id. at 742. The plurality explained that ‘‘[w]etlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview,’’ and thus do not have the ‘‘necessary connection’’ to covered waters that triggers CWA jurisdiction. Id. at 742. The plurality also noted that its reference to ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.’’ Id. at 732 n.5 (emphasis in original). In a concurring opinion, Justice Kennedy took a different approach, concluding that ‘‘to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ Rapanos, 547 U.S. at 759 (Kennedy, J., concurring in the judgment) (citing SWANCC, 531 U.S. at 167, 172). He stated that adjacent wetlands possess the requisite significant nexus if the wetlands ‘‘either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ Id. at 780. Following Rapanos, on June 7, 2007, the agencies issued joint guidance entitled ‘‘Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States’’ to address the waters at issue in that decision. The guidance did not change the codified definition of ‘‘waters of the United States.’’ The guidance indicated that the agencies would assert jurisdiction over traditional navigable waters and their adjacent wetlands, relatively permanent nonnavigable tributaries of traditional navigable waters and wetlands that abut them, nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water, and wetlands adjacent to nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water. The guidance was reissued with minor changes on December 2, 2008 (hereinafter, the ‘‘Rapanos Guidance’’).11 After issuance of the Rapanos Guidance, Members of Congress, developers, farmers, State and local governments, environmental organizations, energy companies, and others asked the agencies to replace the guidance with a regulation that would provide clarity and certainty regarding the scope of the waters federally regulated under the CWA. Since Rapanos, litigation has continued to confuse the regulatory landscape. See, e.g., ECOS Memorandum at 2–23. The Supreme VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22257 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 12 U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Jan. 2015) (EPA/600/R–14/475F). 13 The 2015 Rule did not delineate jurisdiction specifically based on categories with established scientific meanings such as ephemeral, intermittent, and perennial waters that are based on the source of the water and nature of the flow. See 80 FR 37076 (‘‘Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral.’’). Under the 2015 Rule, tributaries also did not need to possess any specific volume, frequency, or duration of flow, or to contribute flow to a traditional navigable water in any given year or specific time period. Court also has twice weighed in on topics related to the agencies’ implementation of their authorities under the CWA to help clarify federal authority in this area. In each case, members of the Court noted the longstanding confusion regarding the scope of federal jurisdiction under the CWA and the importance of providing clear guidance to the regulated community. In 2012, for example, the Supreme Court unanimously rejected the EPA’s longstanding position that compliance orders issued under the CWA to force property owners to restore wetlands are not judicially reviewable as final agency actions. See Sackett v. EPA, 566 U.S. 120, 131 (2012). In a concurring opinion, Justice Alito referred to the jurisdictional reach of the CWA as ‘‘notoriously unclear’’ and noted that the Court’s decision provided only ‘‘a modest measure of relief.’’ Id. at 133 (Alito, J., concurring) (‘‘For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase [‘waters of the United States’]’’). In 2016, the Supreme Court in a unanimous opinion rejected the Corps’ longstanding position that jurisdictional determinations issued by the Corps were not judicially reviewable as final agency actions. Writing for the Court, the Chief Justice recognized that it ‘‘is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.’’ U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1812 (2016). Given those important consequences, the Court held that jurisdictional determinations are subject to immediate judicial review when made. Justice Kennedy authored a concurring opinion, ‘‘not to qualify what the Court says but to point out that, based on the Government’s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern.’’ Id. at 1816–17 (referring to the ‘‘ominous reach’’ of the Act). On remand, the lower court found that the Corps’ assertion of jurisdiction over a peat farm more than 90 miles from the nearest traditional navigable water based on the ‘‘significant nexus’’ test described in the agencies’ Rapanos Guidance was ‘‘arbitrary and capricious.’’ Hawkes Co. v. U.S. Army Corps of Eng’rs, No. 13– 107 ADM/TNL, 2017 U.S. Dist. LEXIS 10680 at *33 (D. Minn. Jan. 24, 2017). 4. The 2015 Rule On June 29, 2015, the agencies issued a final rule (80 FR 37054) amending various portions of the CFR that set forth a definition of ‘‘waters of the United States,’’ a term contained in the CWA’s definition of ‘‘navigable waters,’’ 33 U.S.C. 1362(7). One of the stated purposes of the 2015 Rule was to ‘‘increase CWA program predictability and consistency by clarifying the scope of ‘waters of the United States’ protected under the Act.’’ 80 FR 37054. The 2015 Rule defined the geographic scope of the CWA by placing waters into three categories: (A) Waters that are categorically ‘‘jurisdictional by rule’’ in all instances (i.e., without the need for any additional analysis); (B) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (C) waters that are categorically excluded from jurisdiction. Waters considered ‘‘jurisdictional by rule’’ included (1) waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of waters otherwise identified as jurisdictional; (5) tributaries of the first three categories of ‘‘jurisdictional by rule’’ waters; and (6) waters adjacent to a water identified in the first five categories of ‘‘jurisdictional by rule’’ waters, including ‘‘wetlands, ponds, lakes, oxbows, impoundments, and similar waters.’’ See 80 FR 37104. The 2015 Rule relied on a scientific literature review—the Connectivity Report 12—to support exerting federal jurisdiction over certain waters. See 80 FR 37065 (‘‘[T]he agencies interpret the scope of ‘waters of the United States’ protected under the CWA based on the information and conclusions in the [Connectivity] Report . . . .’’). Although the agencies acknowledged that science cannot dictate where to draw the line of federal jurisdiction, see, e.g., id. at 37060, notwithstanding that qualifier, the agencies relied on the Connectivity Report extensively in establishing the 2015 Rule’s definition of ‘‘waters of the United States.’’ See id. at 37057 (‘‘The [Connectivity] Report provides much of the technical basis for [the] rule.’’). The 2015 Rule added new definitions of key terms such as ‘‘tributaries’’ and revised previous definitions of terms such as ‘‘adjacent’’ (by adding a new definition of ‘‘neighboring’’ that is used in the definition of ‘‘adjacent’’) that would determine whether waters were ‘‘jurisdictional by rule.’’ See 80 FR 37105. Specifically, a ‘‘tributary’’ under the 2015 Rule is a water that contributes flow, either directly or through another water, to a water identified in the first three categories of ‘‘jurisdictional by rule’’ waters that is characterized by the presence of the ‘‘physical indicators’’ of a bed and banks and an ordinary high water mark. According to the 2015 Rule’s preamble, ‘‘[t]hese physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary.’’ Id.13 Tributaries under the 2015 Rule could be natural, man-altered, or man-made, and do not lose their status as a tributary if, for any length, there is one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark could be identified upstream of the break. Id. at 37105–06. In the 2015 Rule, the agencies did not expressly amend the longstanding definition of ‘‘adjacent’’ (defined as ‘‘bordering, contiguous, or neighboring’’), but the agencies added, for the first time, a definition of ‘‘neighboring’’ that changed the meaning of ‘‘adjacent.’’ The 2015 Rule defined ‘‘neighboring’’ to encompass all waters located within 100 feet of the ordinary high water mark of a category (1) through (5) ‘‘jurisdictional by rule’’ water; all waters located within the 100- year floodplain of a category (1) through (5) ‘‘jurisdictional by rule’’ water and not more than 1,500 feet from the ordinary high water mark of such water; all waters located within 1,500 feet of the high tide line of a category (1) through (3) ‘‘jurisdictional by rule’’ water; and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 80 FR 37105. The entire water would be considered ‘‘neighboring’’ if any portion of it lies VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22258 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 14 ‘‘[T]he vast majority of the nation’s water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.’’ U.S. EPA and Department of the Army, Economic Analysis of the EPA-Army Clean Water Rule at 11 (May 20, 2015) (‘‘2015 Rule Economic Analysis’’) (Docket ID: EPA–HQ–OW– 2011–0880–20866), available at https:// www.regulations.gov/document?D=EPA-HQ-OW- 2011-0880-20866. 15 Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico (Environment Department and State Engineer), North Carolina (Department of Environment and Natural Resources), North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the legal challenge later in the process, bringing the total to 32 States. Colorado, New Mexico, and Wisconsin have since withdrawn from litigation against the 2015 Rule. 16 U.S. District Courts for the Northern and Southern Districts of Georgia, District of Minnesota, District of North Dakota, Southern District of Ohio, Northern District of Oklahoma, Southern District of Texas, District of Arizona, Northern District of Florida, District of the District of Columbia, Western District of Washington, Northern District of California, and Northern District of West Virginia. In April 2019, an additional challenge against the 2015 Rule was filed in the U.S. District Court for the District of Oregon. 17 U.S. Courts of Appeals for the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits. 18 Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Iowa’s motion to intervene in the case was granted after issuance of the preliminary injunction. In May 2019, the court granted motions from Colorado and New Mexico to withdraw from the litigation and lifted the preliminary injunction as to Colorado and New Mexico. Order, North Dakota v. EPA, No. 3:15–cv–00059 (D.N.D. May 14, 2019). At the same time, the court stated that the preliminary injunction would remain in effect as to a plaintiff-intervenor that represents ten counties in New Mexico. The agencies filed a motion seeking clarification of the applicability of the court’s preliminary injunction to those ten counties in New Mexico. Defendants’ Motion for Clarification Regarding the Scope of the Court’s Preliminary Injunction, North Dakota v. EPA, No. 3:15–cv– 00059 (D.N.D. May 24, 2019). As of the time of signature of this final rule, that motion is pending before the court. within one of these zones. See id. These quantitative measures did not appear in the proposed rule and, as discussed in the 2019 Rule and below, the agencies concluded that they were not sufficiently supported in the administrative record for the final rule. In addition to the six categories of ‘‘jurisdictional by rule’’ waters, the 2015 Rule identified certain waters that would be subject to a case-specific analysis to determine if they had a ‘‘significant nexus’’ to a water that is jurisdictional. 80 FR 37104–05. The first category consists of five specific types of waters in specific regions of the country: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands. Id. at 37105. The second category consists of all waters located within the 100-year floodplain of any category (1) through (3) ‘‘jurisdictional by rule’’ water and all waters located within 4,000 feet of the high tide line or ordinary high water mark of any category (1) through (5) ‘‘jurisdictional by rule’’ water. Id. These quantitative measures did not appear in the proposed rule and, as discussed in the 2019 Rule and below, the agencies concluded that they were not sufficiently supported in the administrative record for the final 2015 Rule. The 2015 Rule defined ‘‘significant nexus’’ to mean a water, including wetlands, that either alone or in combination with other similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of a category (1) through (3) ‘‘jurisdictional by rule’’ water. 80 FR 37106. ‘‘For an effect to be significant, it must be more than speculative or insubstantial.’’ Id. The term ‘‘in the region’’ meant ‘‘the watershed that drains to the nearest’’ primary water. Id. This definition was different from the test articulated by the agencies in their 2008 Rapanos Guidance. That guidance interpreted ‘‘similarly situated’’ to include all wetlands (not waters) adjacent to the same tributary. Under the 2015 Rule, to determine whether a water, alone or in combination with similarly situated waters across the watershed of the nearest primary water, had a significant nexus, one had to consider nine functions such as sediment trapping, runoff storage, provision of life cycle dependent aquatic habitat, and other functions. 80 FR 37106. A single function performed by a water, alone or together with similarly situated waters in the region, that contributed significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) ‘‘jurisdictional by rule’’ water was sufficient to establish a significant nexus. Id. Taken together, the enumeration of the nine functions and the more expansive consideration of ‘‘similarly situated waters in the region’’ in the 2015 Rule meant that the vast majority of water features in the United States may have come within the jurisdictional purview of the Federal government.14 The 2015 Rule also retained exclusions from the definition of ‘‘waters of the United States’’ for prior converted cropland and waste treatment systems. 80 FR 37105. In addition, the agencies codified several exclusions that, in part, reflected longstanding agency practice and added others such as ‘‘puddles’’ and ‘‘swimming pools’’ in response to concerns raised by stakeholders during the public comment period on the proposed 2015 Rule. Id. at 37096–98, 37105. Following the 2015 Rule’s publication, 31 States 15 and numerous non-state parties, including environmental groups and groups representing farming, recreational, forestry, and other interests, filed complaints and petitions for review in multiple federal district 16 and appellate 17 courts challenging the 2015 Rule. In those cases, the challengers alleged numerous procedural deficiencies in the development and promulgation of the 2015 Rule and substantive deficiencies in the 2015 Rule itself. Some challengers argued that the 2015 Rule was too expansive, while others argued that it excluded too many waters from federal jurisdiction. The day before the 2015 Rule’s August 28, 2015 effective date, the U.S. District Court for the District of North Dakota preliminarily enjoined the 2015 Rule in the 13 States that challenged the rule in that court.18 The district court found those States were ‘‘likely to succeed’’ on the merits of their challenge to the 2015 Rule because, among other reasons, ‘‘it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule.’’ North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In particular, the court noted concern that the 2015 Rule’s definition of ‘‘tributary’’ ‘‘includes vast numbers of waters that are unlikely to have a nexus to navigable waters.’’ Id. at 1056. Further, the court found that ‘‘it appears likely the EPA failed to comply with [Administrative Procedure Act (APA)] requirements when promulgating the Rule,’’ suggesting that certain distance-based measures were not a logical outgrowth of the proposal to the 2015 Rule. Id. at 1051, 1058. No party sought an interlocutory appeal. The numerous petitions for review filed in the courts of appeals were consolidated in the U.S. Court of Appeals for the Sixth Circuit. In that litigation, State and industry petitioners raised concerns about whether the 2015 Rule violated the Constitution and the CWA and whether its promulgation violated the APA and other statutes. Environmental petitioners also challenged the 2015 Rule, claiming in part that the 2015 Rule was too narrow because of the distance limitations and other issues. On October 9, 2015, approximately six weeks after the 2015 Rule took effect in the 37 States, the District of Columbia, and U.S. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22259 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 19 As of the date this final rule was signed, the applicability and scope of the North Dakota district court’s preliminary injunction in New Mexico is unclear. See supra note 18. 20 The Southern District of Georgia later denied as moot plaintiffs’ motions for reconsideration asking the court to vacate, rather than remand, the 2015 Rule. Order, Georgia v. Wheeler, No. 2:15–cv–079 (S.D. Ga. Jan. 3, 2020). 21 The Southern District of Texas later denied plaintiffs’ motions for reconsideration urging the court to vacate, rather than remand, the 2015 Rule. Order, Texas v. EPA, No. 3:15–cv–00162 (S.D. Tex. Nov. 6, 2019). 22 Parties challenging the 2015 Rule in the U.S. District Court for the Northern District of Oklahoma, including the State of Oklahoma and the U.S. Chamber of Commerce, unsuccessfully sought a motion for a preliminary injunction against the 2015 Rule and later stipulated to a voluntary dismissal of the case. See Opinion & Order, Oklahoma v. EPA, No. 4:15–cv–00381 (N.D. Okla. May 29, 2019); Stipulation of Voluntary Dismissal, Oklahoma v. EPA, No. 4:15–cv–00381 (N.D. Okla. Jan. 7, 2019). Following the effective date of the 2019 Rule, an additional motion for a preliminary injunction against the 2015 Rule was denied as moot in the U.S. District Court for the Western District of Washington. Order, Wash. Cattlemen’s Ass’n v. EPA, No. 19–00569 (W.D. Wash. Dec. 30, 2019). Territories that were not subject to the preliminary injunction issued by the District of North Dakota, the Sixth Circuit stayed the 2015 Rule nationwide after concluding, among other things, that State petitioners had demonstrated ‘‘a substantial possibility of success on the merits of their claims.’’ In re EPA & Dep’t of Def. Final Rule, 803 F.3d 804, 807 (6th Cir. 2015) (‘‘In re EPA’’). On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the courts of appeals have original jurisdiction to review challenges to the 2015 Rule. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017). The Sixth Circuit granted petitioners’ motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals’ jurisdiction. On January 22, 2018, the Supreme Court, in a unanimous opinion, held that the 2015 Rule is subject to direct review in the district courts. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 624 (2018). Throughout the pendency of the Supreme Court litigation (and for a short time thereafter), the Sixth Circuit’s nationwide stay remained in effect. In response to the Supreme Court’s decision, on February 28, 2018, the Sixth Circuit lifted the stay and dismissed the corresponding petitions for review. See In re Dep’t of Def. & EPA Final Rule, 713 Fed. Appx. 489 (6th Cir. 2018). Following the Supreme Court’s jurisdictional ruling, district court litigation regarding the 2015 Rule resumed. At this time, the 2015 Rule continues to be subject to a preliminary injunction issued by the District of North Dakota as to 12 States: Alaska, Arizona, Arkansas, Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming.19 The 2015 Rule also is subject to a preliminary injunction issued by the U.S. District Court for the Southern District of Georgia as to 11 more States: Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin. Georgia v. Pruitt, 326 F. Supp. 3d 1356, 1364 (S.D. Ga. 2018). The Southern District of Georgia subsequently issued an order remanding the 2015 Rule to the agencies, finding that the 2015 Rule exceeded the agencies’ statutory authority under the CWA and was promulgated in violation of the APA. Georgia v. Wheeler, No. 2:15–cv–079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). ‘‘[I]n light of the serious defects identified,’’ the court retained its injunction against the 2015 Rule. Id. at *36.20 In September 2018, the U.S. District Court for the Southern District of Texas issued a preliminary injunction against the 2015 Rule in response to motions filed by the States of Texas, Louisiana, and Mississippi and several business associations, finding that enjoining the rule would provide ‘‘much needed governmental, administrative, and economic stability’’ while the rule undergoes judicial review. See Texas v. EPA, No. 3:15–cv–162, 2018 WL 4518230, at *1 (S.D. Tex. Sept. 12, 2018). The court observed that if it did not temporarily enjoin the rule, ‘‘it risks asking the states, their governmental subdivisions, and their citizens to expend valuable resources and time operationalizing a rule that may not survive judicial review.’’ Id. In May 2019, the court remanded the 2015 Rule to the agencies on the grounds that the rule violated the APA. Specifically, the court found that the rule violated the APA’s notice and comment requirements because: (1) The 2015 Rule’s definition of ‘‘adjacent’’ waters (which relied on distance-based limitations) was not a ‘‘logical outgrowth’’ of the proposal’s definition of ‘‘adjacent’’ waters (which relied on ecologic and hydrologic criteria); and (2) the agencies denied interested parties an opportunity to comment on the final version of the Connectivity Report, which served as the technical basis for the final rule. See Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. 2019).21 In July 2019, the U.S. District Court for the District of Oregon issued a preliminary injunction against the 2015 Rule in the State of Oregon. Order, Or. Cattlemen’s Ass’n v. EPA, No. 19–00564 (D. Or. July 26, 2019). As a result, the 2015 Rule was enjoined in more than half of the States. Three additional States (Ohio, Michigan, and Tennessee) sought a preliminary injunction against the 2015 Rule in the U.S. District Court for the Southern District of Ohio. In March 2019, the court denied the States’ motion, finding that the States had ‘‘failed to demonstrate that they will suffer imminent and irreparable harm absent an injunction.’’ See Ohio v. EPA, No. 2:15–cv–02467, 2019 WL 1368850 (S.D. Ohio Mar. 26, 2019). The court subsequently denied the States’ motion for reconsideration of its order denying the preliminary injunction motion, and the States have since filed an appeal of the court’s order in the Sixth Circuit. See Ohio v. EPA, No. 2:15–cv–02467, 2019 WL 1958650 (S.D. Ohio May 2, 2019); Plaintiffs’ Notice of Appeal, Ohio v. EPA, No. 2:15–cv–02467 (S.D. Ohio May 28, 2019).22 C. Executive Order 13778 and the ‘‘Step One’’ Rulemaking On February 28, 2017, the President issued Executive Order 13778 entitled ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ Section 1 of the Executive Order states, ‘‘[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.’’ The Executive Order directs the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in Section 1 of the Order and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law (Section 2). The Executive Order also directs the agencies to ‘‘consider interpreting the term ‘navigable waters’ . . . in a manner consistent with’’ Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006) (Section 3). On March 6, 2017, the agencies published a notice of intent to review the 2015 Rule and provide notice of a forthcoming proposed rulemaking consistent with the Executive Order. 82 FR 12532. Shortly thereafter, the agencies announced that they would implement the Executive Order in a two-step approach. On July 27, 2017, VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22260 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations the agencies published the ‘‘Definition of ‘Waters of the United States’— Recodification of Pre-Existing Rules’’ notice of proposed rulemaking (NPRM) (82 FR 34899) that proposed to repeal the 2015 Rule and recodify the regulatory text that governed prior to the promulgation of the 2015 Rule, consistent with Supreme Court decisions and informed by applicable guidance documents and longstanding agency practice. The agencies refer to this as the ‘‘Step One’’ rule. The agencies invited comment on the NPRM over a 62-day period. On July 12, 2018, the agencies published a supplemental notice of proposed rulemaking (SNPRM) to clarify, supplement, and seek additional comment on the proposed repeal and recodification. 83 FR 32227. The agencies invited comment on the SNPRM over a 30-day period. On October 22, 2019, the agencies published a final rule repealing the 2015 Rule and recodifying the pre-existing regulations as an interim matter until this final rule becomes effective. 84 FR 56626. In developing the final Step One rule (referred to as the ‘‘2019 Rule’’), the agencies reviewed approximately 690,000 public comments received on the NPRM and approximately 80,000 comments received on the SNPRM from a broad spectrum of interested parties. In the NPRM and SNPRM the agencies sought comment on all aspects of the NPRM, the economic analysis for the NPRM, and the SNPRM, including the repeal of the 2015 Rule, the recodification of the prior regulations, the considerations underlying the proposal and agencies’ reasons for the proposal, and the agencies’ proposed conclusions that the 2015 Rule exceeded the agencies’ authority under the CWA. The agencies finalized the 2019 Rule, which became effective December 23, 2019, and repealed the 2015 Rule for four primary reasons. First, the agencies concluded that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the CWA as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos. Second, the agencies concluded that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to ‘‘recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’’ and ‘‘to plan the development and use . . . of land and water resources.’’ 33 U.S.C. 1251(b). Third, the agencies repealed the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachment of federal jurisdiction over traditional State land- use planning authority. Lastly, the agencies concluded that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies found that these reasons, collectively and individually, warranted repealing the 2015 Rule. At this time, the regulations defining the scope of federal CWA jurisdiction are those portions of the CFR as they existed before the amendments promulgated in the 2015 Rule. The agencies concluded that it was appropriate as an interim matter to restore the pre-existing regulations to provide regulatory certainty as the agencies considered the proposed revised definition of ‘‘waters of the United States’’ and because, as implemented, those prior regulations adhere more closely than the 2015 Rule to the jurisdictional limits reflected in the statute and case law. As anticipated in the 2019 Rule, this final rule replaces the recodified pre-2015 regulations, upon its effective date. As of the time of signature of this final rule, challenges to the agencies’ 2019 Rule are pending in six district courts, wherein both environmental and industry groups have either filed new complaints or sought to supplement existing complaints to challenge the rule in whole or in part. See New York v. Wheeler, No. 19–11673 (S.D.N.Y., complaint filed Dec. 20, 2019); Wash. Cattlemen’s Ass’n v. EPA, No. 2:19–cv– 00569 (W.D. Wash., supplemental amended complaint filed Dec. 20, 2019); Murray v. Wheeler, No. 1:19–cv–01498 (N.D.N.Y., complaint filed Dec. 4, 2019); S.C. Coastal Conservation League v. Wheeler, No. 2:19–cv–3006 (D.S.C., complaint filed Oct. 23, 2019); N.M. Cattle Growers’ Ass’n v. EPA, No. 1:19– cv–988 (D.N.M., complaint filed Oct. 22, 2019); Pierce v. EPA, No. 0:19–cv–2193 (D. Minn., supplemental complaint filed Oct. 22, 2019). D. Summary of Stakeholder Outreach and the ‘‘Step Two’’ Rulemaking Following the March 6, 2017 Federal Register notice announcing the agencies’ intent to review and rescind or revise the 2015 Rule, the agencies initiated an effort to engage the public to hear perspectives as to how the agencies could define ‘‘waters of the United States,’’ including creating a new website to provide information on the rulemaking. See www.epa.gov/wotus- rule. On April 19, 2017, the agencies held an initial Federalism consultation meeting with State and local government officials as well as national organizations representing such officials. The agencies also convened several additional meetings with intergovernmental associations and their members to solicit input on the future rule. The EPA, with participation from the Army, initiated Tribal consultation on April 20, 2017, under the EPA Policy on Consultation and Coordination with Indian Tribes. See Section VI for further details on the agencies’ consultations. The agencies considered comments received from federalism and tribal consultations as they developed this final rule. In addition to engaging State, tribal, and local officials through federalism and tribal consultations, the agencies sought feedback on the definition of ‘‘waters of the United States’’ from a broad audience of stakeholders, including small entities (small businesses, small organizations, and small government jurisdictions), through a series of outreach webinars that were held September 9, 2017, through November 21, 2017, and through an in-person meeting for small entities on October 23, 2017. A summary of these public listening sessions is available in the docket (Docket Id. No. EPA–HQ–OW–2018– 0149–0091) for this rule. The webinars were tailored to specific sectors, including agriculture (row crop, livestock, silviculture); conservation (hunters and anglers); small entities (small businesses, small organizations, small government jurisdictions); construction and transportation; environment and public advocacy (including health and environmental justice); mining; energy and chemical industry; scientific organizations and academia; stormwater, wastewater management, and drinking water agencies; and the general public. At the pre-proposal webinars and meetings with stakeholders, the agencies provided a presentation and sought input on specific issues, such as potential approaches to defining the phrases ‘‘relatively permanent’’ waters and ‘‘continuous surface connections’’ as articulated by the plurality opinion in Rapanos, as well as other considerations addressing specific geomorphological features, exclusions and exemptions, costs and benefits, and aquatic resource data that the agencies might consider in the technical analyses for a future rule. As part of this outreach effort, the agencies established a public recommendations docket (Docket ID No. EPA–HQ–OW–2017–0480) that opened VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22261 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 23 The pre-publication of the proposed rule was published on EPA’s website on December 12, 2018, approximately 60 days prior to its publication in the Federal Register and the date the formal public comment period began. August 28, 2017, and closed November 28, 2017. Participant comments and letters submitted represent a diverse range of interests, positions, suggestions, and recommendations provided to the agencies. The agencies received over 6,300 recommendations (available on Regulations.gov at https:// www.regulations.gov/docket?D=EPA- HQ-OW-2017-0480) that were considered as the agencies developed the proposed revised definition of ‘‘waters of the United States.’’ The agencies also considered recommendations as to how the agencies should define ‘‘waters of the United States’’ that were submitted in public comments on the agencies’ proposed ‘‘Step One’’ rule (82 FR 34899, July 27, 2017) and the July 2018 SNPRM (83 FR 32227, July 12, 2018). The agencies continued their pre- proposal engagement with States and Tribes via additional webinars and in- person meetings. On March 8 and 9, 2018, the agencies held an in-person State Co-Regulators Workshop with representatives from nine States (Arizona, Arkansas, Florida, Iowa, Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming) and convened a subsequent in-person meeting on March 22, 2018, with representatives from all States at the spring meeting of the Environmental Council of the States. The agencies also held an in-person Tribal Co-Regulators Workshop on March 6 and 7, 2018, with representatives from 20 tribes. These meetings were intended to seek technical input as the agencies developed the proposed rule. The agencies also sought pre-proposal input from Tribes through national and regional tribal meetings, including through listening sessions at the Tribal Land and Environment Forum (August 16, 2017 and August 15, 2018) and the National Congress of American Indians Annual Convention (October 24, 2018). On December 12, 2018, the agencies signed the proposed rule to revise the definition of ‘‘waters of the United States,’’ as the second step of the comprehensive two-step process consistent with Executive Order 13778. The proposal was published on February 14, 2019. 84 FR 4154. The agencies proposed to interpret the term ‘‘waters of the United States’’ to encompass: Traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters. The 60-day public comment period for the proposed revised definition of ‘‘waters of the United States’’ (‘‘Step Two’’ Rule) closed on April 15, 2019.23 The agencies conducted a variety of stakeholder outreach on the proposed rule upon its publication in the Federal Register. On February 14, 2019, the agencies held a public webcast to present key elements of the proposed rule (see https://www.youtube.com/ watch?v=ZZ6kFJasDhg&feature= youtu.be), and held a public hearing in Kansas City, Kansas, on February 27 and 28, 2019, to hear feedback from individuals from regulated industry sectors, environmental and conservation organizations, State agencies, tribal governments, and private citizens. The agencies also continued engagement with States and Tribes through a series of in-person meetings with State and tribal representatives in Kansas City, Kansas; Atlanta, Georgia; Albuquerque, New Mexico; and Seattle, Washington during the public comment period for the proposed rule. During these meetings, the agencies provided an overview of the proposed rule, responded to clarifying questions from participants, discussed implementation considerations, and heard feedback on the agencies’ interest in developing geospatial datasets of jurisdictional waters. A transcript of the public hearing and related materials and summaries of the State and tribal meetings can be found in the docket for the final rule. At the request of individual Tribes, the agencies also continued to hold staff-level and leader- to-leader meetings with individual Tribes. In developing this final rule, the agencies reviewed and considered approximately 620,000 comments received on the proposed rule from a broad spectrum of interested parties. Commenters provided a wide range of feedback on the various aspects of the proposal, including the legal basis for the proposed rule, the agencies’ proposed treatment of categories of jurisdictional waters and those features that would not be jurisdictional, the economic analysis and resource and programmatic assessment for the proposed rule, and the agencies’ considerations for developing geospatial datasets of jurisdictional waters in partnership with other federal agencies, States, and Tribes. The agencies discuss comments received and their responses in the applicable sections of this final rule. A complete response to comments document is available in the docket for this final rule at Docket ID No. EPA– HQ–OW–2018–0149. The agencies also engaged with the EPA’s Science Advisory Board (SAB) during the development of the rule on several occasions. The agencies met with the SAB prior to the proposed rule and following publication of the proposed rule to explain the basis for the rule and to address the SAB’s questions and initial observations. The SAB issued a draft commentary on the proposed rule on December 31, 2019, and held a public meeting on the matter on January 17, 2020. The SAB’s draft commentary asserted that the proposed rule did not fully incorporate the Connectivity Report and offers no comparable body of peer reviewed evidence to support this departure. As the agencies made clear in the proposed rule preamble and explain in greater detail in this notice, the agencies used the Connectivity Report to inform certain aspects of the definition of ‘‘waters of the United States,’’ but recognize that science cannot dictate where to draw the line between Federal and State waters, as this is a legal question that must be answered based on the overall framework and construct of the CWA. The SAB’s draft also addresses the absence of ‘‘ground water protection;’’ the exclusion of ‘‘irrigation canals’’ from regulatory jurisdiction; the exclusion of ‘‘adjacent wetlands that do not abut or have a direct hydrologic surface connection to otherwise jurisdictional waters;’’ and the absence of ‘‘long term clarity’’ as a result of the asserted lack of scientific basis for the proposed rule. The relevant comments raised by the SAB were also raised by public commenters throughout the rulemaking process, and as a result, have been addressed by the agencies in the final rule, supporting documents, and throughout this notice. In brief, however, the agencies note that the final rule is consistent with the agencies’ longstanding position that ‘‘waters of the United States’’ do not include groundwater; that the agencies do not use the term ‘‘irrigation canals’’ in the final rule; that ‘‘irrigation ditches’’ constructed in uplands and ‘‘irrigation return flows’’ generally have been not been subject to CWA regulatory requirements; and that the agencies have expanded jurisdiction over certain ‘‘adjacent wetlands’’ compared to the proposal to better incorporate common principles from the Rapanos plurality and concurring opinions, that the final rule strikes a better balance between the objective and policy in CWA sections 101(a) and 101(b), respectively; and that VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22262 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 24 The legislative history of the CWA further illuminates the distinction between the terms ‘‘policy’’ and ‘‘objective,’’ or ‘‘goal.’’ As Congress drafted the 1972 CWA amendments, the Senate bill set the ‘‘no-discharge of pollutants into the navigable water by 1985’’ provision as a policy whereas the House bill set it as a goal. The Act was ultimately passed with the ‘‘no-discharge by 1985’’ provision established as a goal. See 33 U.S.C 1251(a)(1). During the House’s consideration of the Conference Report, Representative Robert E. Jones, Jr. captured the policy versus goal distinction in section 101(a)(1) as follows: ‘‘The objective of this legislation is to restore and preserve for the future the integrity of our Nation’s waters. The bill sets forth as a national goal the complete elimination of all discharges into our navigable waters by 1985, but . . . the conference report states clearly that achieving the 1985 target date is a goal, not a national policy. As such, it serves as a focal point for long-range planning, and for research and development in water pollution control technology .... While it is our hope that we can succeed in eliminating all discharge into our waters by 1985, without unreasonable impact on the national life, we recognized in this report that too many imponderables exist, some still beyond our horizons, to prescribe this goal today as a legal requirement.’’ 118 Cong. Rec. H. 33749 (daily ed. October 4, 1972). 25 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012) (‘‘Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.’’); Russello v. United States, 464 U.S. 16, 23 (1983) (‘‘[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’) the final rule is consistent with the text, structure, legislative history, and applicable Supreme Court guidance. A memorandum summarizing the agencies’ interactions with the SAB and the SAB’s draft commentary are available in the docket for this final rule. E. Overview of Legal Construct for the Final Rule As the preceding summary of the statutory and regulatory history makes clear, the central term delineating the federal geographic scope of authority under the CWA—‘‘waters of the United States’’—has been the subject of debate and litigation for many years. The agencies are promulgating a regulation to define ‘‘waters of the United States’’ adhering to Constitutional and statutory limitations, the policies and objective of the CWA, and case law. The revised definition will allow the regulatory agencies and the regulated community to protect navigable waters from pollution while providing an implementable approach to determining regulatory jurisdiction under the CWA. This subsection summarizes the legal principles that inform the agencies’ final rule, and the following section (Section III) describes how the agencies are applying those legal principles to support the final revised definition of ‘‘waters of the United States.’’ 1. Statutory Framework To determine the scope of executive branch authority under the CWA, the agencies begin with the text of the statute. The objective of the CWA, as established by Congress, is ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. 1251(a). As discussed in Section II.B, in order to meet that objective, Congress declared two national water quality goals and established several key policies that direct the work of the agencies. Congress also envisioned a major role for the States in implementing the CWA, carefully balancing the traditional power of States to regulate land and water resources within their borders with the need for national water quality regulation. The agencies have developed regulatory and non-regulatory programs designed to ensure that the full statute is implemented as Congress intended. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (‘‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’’). This includes pursuing the overall ‘‘objective’’ of the CWA to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’’ 33 U.S.C. 1251(a), while implementing the specific ‘‘policy’’ directives from Congress to, among other things, ‘‘recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’’ and ‘‘to plan the development and use . . . of land and water resources.’’ Id. at 1251(b); see also Webster’s II, New Riverside University Dictionary (1994) (defining ‘‘policy’’ as a ‘‘plan or course of action, as of a government[,] designed to influence and determine decisions and actions;’’ an ‘‘objective’’ is ‘‘something worked toward or aspired to: Goal’’).24 The agencies therefore recognize a distinction between the specific word choices of Congress, including the need to develop regulatory and non- regulatory programs that aim to accomplish the goals of the Act while implementing the specific policy directives of Congress.25 To do so, the agencies must determine what Congress had in mind when it defined ‘‘navigable waters’’ in 1972 as ‘‘the waters of the United States.’’ Congress’ authority to regulate navigable waters under the CWA derives from its power to regulate the ‘‘channels of interstate commerce’’ under the Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). In United States v. Lopez, the Supreme Court explained that the Commerce Clause gives Congress the authority to regulate in three areas: The ‘‘channels of interstate commerce,’’ the ‘‘instrumentalities of interstate commerce,’’ and those additional activities having ‘‘a substantial relation to interstate commerce.’’ 514 U.S. 549, 558–59 (1995). Some commenters stated that Congress’ authority over ‘‘waters of the United States’’ is not tethered to navigable channels of interstate commerce, but is also derived from its authority over the ‘‘instrumentalities of interstate commerce’’ and activities that ‘‘substantially affect’’ interstate commerce. See id. The agencies disagree with these comments. The Supreme Court made clear in SWANCC that the term ‘‘navigable’’ indicates ‘‘what Congress had in mind as its authority for enacting the CWA: Its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’’ 531 U.S. 159, 172 (2001). The Court further explained that nothing in the legislative history of the Act provides any indication that ‘‘Congress intended to exert anything more than its commerce power over navigation.’’ Id. at 168 n.3. The Supreme Court, however, has recognized that Congress intended ‘‘to exercise its powers under the Commerce clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.’’ Riverside Bayview, 474 U.S. at 133; see also SWANCC, 531 U.S. at 167. The classical understanding of the term ‘‘navigable’’ was first articulated by the Supreme Court in The Daniel Ball: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. 77 U.S. (10 Wall.) 557, 563 (1871). Subsequently, this traditional test was expanded to include waters that had been used in the past for interstate commerce, see Economy Light & Power Co. v. United States, 256 U.S. 113, 123 (1921), and waters that are susceptible VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22263 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 26 The agencies recognize that individual member statements are not a substitute for full congressional intent, but they do help provide context for issues that were discussed during the legislative debates. For a detailed discussion of the legislative history of the 1972 CWA amendments, see Albrecht & Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, 32 ELR 11042 (Sept. 2002). 27 For a detailed discussion of the legislative history supporting the enactment of CWA section 404(g), see Final Report of the Assumable Waters Subcommittee (May 2017), App. F., available at https://www.epa.gov/sites/production/files/2017- 06/documents/awsubcommitteefinalreprort_05- 2017_tag508_05312017_508.pdf < Caution-https:// www.epa.gov/sites/production/files/2017-06/ documents/awsubcommitteefinalreprort_05-2017_ tag508_05312017_508.pdf. for use with reasonable improvement, see United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407–10 (1940). By the time the 1972 CWA amendments were enacted, the Supreme Court had held that Congress’ authority over the channels of interstate commerce was not limited to regulation of the channels themselves but could extend to activities necessary to protect the channels. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523 (1941) (‘‘Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.’’). The Supreme Court had also clarified that Congress could regulate waterways that formed a part of a channel of interstate commerce, even if they are not themselves navigable or do not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11 (1971). These developments were discussed during the legislative process leading up to the passage of the 1972 CWA amendments, and certain members referred to the scope of the amendments as encompassing waterways that serve as a ‘‘link in the chain’’ of interstate commerce as it flows through various channels of transportation, such as railroads and highways. See, e.g., 118 Cong. Rec. 33756–57 (1972) (statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie).26 Other references suggest that congressional committees at least contemplated applying the ‘‘control requirements’’ of the Act ‘‘to the navigable waters, portions thereof, and their tributaries.’’ S. Rep. No. 92–414, at 77 (1971). Some commenters on this rulemaking stated that Congress’ authority under the CWA is limited to waters that actually transport commerce, not their tributaries or adjacent wetlands, and that this limitation on CWA jurisdiction would fully preserve the authority of States to address pollution. The agencies disagree with these commenters based on the Supreme Court’s holdings and the legislative history of the 1972 amendments discussed above, as well as the text of the 1977 amendments to the CWA. Specifically, in 1977, when Congress authorized State assumption over the section 404 dredged or fill material permitting program, Congress limited the scope of waters that could be assumed by a State or Tribe by requiring the Corps to retain permitting authority over RHA waters (as identified by the test outlined in The Daniel Ball) plus wetlands adjacent to those waters, minus historic-use-only waters. See 33 U.S.C. 1344(g)(1).27 This suggests that Congress had in mind a broader scope of waters subject to CWA jurisdiction than waters traditionally understood as navigable. See SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11. Thus, Congress intended to assert federal authority over more than just waters traditionally understood as navigable, and Congress rooted that authority in ‘‘its commerce power over navigation.’’ SWANCC, 531 U.S. at 168 n.3. However, there must be a limit to that authority and to what water is subject to federal jurisdiction. How the agencies should exercise that authority has been the subject of dispute for decades, but the Supreme Court on three occasions has analyzed the issue and provided some instructional guidance for the agencies to consider in developing this final rule. 2. U.S. Supreme Court Precedent a. Adjacent Wetlands In Riverside Bayview, the Supreme Court considered the Corps’ assertion of jurisdiction over ‘‘low-lying, marshy land’’ immediately abutting a water traditionally understood as navigable on the grounds that it was an ‘‘adjacent wetland’’ within the meaning of the Corps’ then-existing regulations. 474 U.S. at 124. The Court addressed the question of whether non-navigable wetlands may be regulated as waters of the United States on the basis that they are ‘‘adjacent to’’ navigable-in-fact waters and ‘‘inseparably bound up with’’ them because of their ‘‘significant effects on water quality and the aquatic ecosystem.’’ See id. at 131–35 & n.9. In determining whether to give deference to the Corps’ assertion of jurisdiction over adjacent wetlands, the Court acknowledged the difficulty in determining where federal jurisdiction ends, noting that the line is somewhere between open water and dry land: In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of ‘‘waters’’ is far from obvious. Id. at 132 (emphasis added). Within this statement, the Supreme Court identifies a basic principle for adjacent wetlands: The limits of jurisdiction lie within the ‘‘continuum’’ or ‘‘transition’’ ‘‘between open waters and dry land.’’ Observing that Congress intended the CWA ‘‘to regulate at least some waters that would not be deemed ‘navigable,’’’ the Court held that it is ‘‘a permissible interpretation of the Act’’ to conclude that ‘‘a wetland that actually abuts on a navigable waterway’’ falls within the ‘‘definition of ‘waters of the United States.’’’ Id. at 133, 135. Thus, a wetland that abuts a water traditionally understood as navigable is subject to CWA jurisdiction because it is ‘‘inseparably bound up with the ‘waters’ of the United States.’’ Id. at 134. ‘‘This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water.’’ Id. The Supreme Court also noted that the agencies can establish categories of jurisdiction for adjacent wetlands. See id. at 135 n.9. It made clear that these categories could be reasonable if the Corps concludes that ‘‘in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem.’’ Id. A definition of ‘‘waters of the United States’’ ‘‘can stand’’ even if it potentially sweeps in individual wetlands that are not sufficiently ‘‘intertwined with the ecosystem of adjacent waterways’’ to warrant protection. Id. In such cases, if the regulating entity determines that a particular wetland lacks importance to the aquatic environment, or its importance is outweighed by other factors, that wetland could be developed through the permit issuance process. Id. Some commenters noted that the definition of ‘‘adjacent wetlands’’ that the Supreme Court unanimously upheld in Riverside Bayview included categories of wetlands that would not be per se ‘‘adjacent’’ under the proposed rule, including all ‘‘[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.’’ 51 FR 41251 (Nov. 13, 1986). These commenters stated that the Court deferred to the Corps’ judgment that VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22264 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 28 At oral argument during Riverside Bayview, the attorney representing the United States characterized the wetland at issue as ‘‘in fact an adjacent wetland, adjacent—by adjacent, I mean it is immediately next to, abuts, adjoins, borders, whatever other adjective you might want to use, navigable waters of the United States.’’ Transcript of Oral Argument at 16, United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (No. 84–701). 29 The agencies note that during oral argument in SWANCC, Justice Kennedy stated, ‘‘[T]his case, it seems to me, does point up the problem that petitioner’s counsel raised quoting from page 1 of the blue brief, ‘it is the primary responsibility of the states to eliminate pollution and to plan development and use of land’ .... It seems to me that this illustrates that the way in which the Corps has promulgated its regulation departs from the design of the statute.’’ Transcript of Oral Argument at 40, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (No. 99–1178) (emphasis added). And several years later, during oral argument in Rapanos, after the U.S. Solicitor General stated, ‘‘[W]hat Congress recognized in 1972 is that they had to regulate beyond traditional navigable waters,’’ Justice Kennedy stated, ‘‘But the Congress in 1972 also . . . said it’s a statement of policy to reserve to the States the power and the responsibility to plan land use and water resources. And under your definition, I just see that we’re giving no scope at all to that clear statement of the congressional policy.’’ Transcript of Oral Argument at 58, Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (Nos. 04–1034, 04–1384). Although the agencies do not give independent weight to these statements at oral argument, the statements are consistent with the agencies’ interpretation of the CWA and applicable Supreme Court decisions. wetlands may affect the water quality of jurisdictional waterbodies even if the waterbodies do not inundate the wetlands. See Riverside Bayview, 474 U.S. at 133–35. The proposed rule included wetlands as jurisdictional absent inundation by another water. See e.g., 84 FR 4187 (‘‘The proposed definition of ‘adjacent wetlands’ would not require surface water exchange between wetlands and the jurisdictional waters they abut to create the jurisdictional link[.]’’). As explained in Section III.G., the agencies have considered public comments in light of the statutory text and other relevant considerations and are finalizing a definition of ‘‘adjacent wetlands’’ that is more encompassing than the proposal. In any event, the agencies note that a Court’s deference to an agency’s particular interpretation of a statute does not foreclose alternative interpretations. The Supreme Court has held that ‘‘a court’s choice of one reasonable reading of an ambiguous statute does not preclude an implementing agency from later adopting a different reasonable interpretation.’’ United States v. Eurodif S.A., 555 U.S. 305, 315 (2009). This principle follows from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which ‘‘established a ‘presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’’’ Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (quoting Smiley v. Citibank, 517 U.S. 735, 740–41 (1996)). Moreover, an ‘‘initial agency interpretation is not instantly carved in stone.’’ Chevron, 467 U.S. at 863; see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (‘‘[A]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change.’’) (citations omitted). Consistent with the APA and applicable case law, in this final rule the agencies have provided ample justification for a change in interpretation of the CWA concerning the scope of jurisdiction over waters and wetlands, including any changes from their prior interpretations. The Supreme Court in Riverside Bayview declined to decide whether wetlands that are not adjacent to navigable waters could also be regulated by the agencies. See 474 U.S. at 124 n.2 and 131 n.8. In SWANCC a few years later, however, the Supreme Court analyzed a similar question in the context of an abandoned sand and gravel pit located some distance from a traditional navigable water, with excavation trenches that ponded—some only seasonally—and served as habitat for migratory birds. 531 U.S. at 162–63. The Supreme Court rejected the government’s stated rationale for asserting jurisdiction over such ‘‘nonnavigable, isolated, intrastate waters’’ as outside the scope of CWA jurisdiction. Id. at 171–72. In doing so, the Supreme Court noted that Riverside Bayview upheld ‘‘jurisdiction over wetlands that actually abutted on a navigable waterway’’ because the wetlands were ‘‘inseparably bound up with the ‘waters’ of the United States.’’ Id. at 167.28 As summarized by the SWANCC majority: It was the significant nexus between the wetlands and ‘‘navigable waters’’ that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not ‘‘express any opinion’’ on the ‘‘question of authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water. . . .’’ In order to rule for [the Corps] here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this. Id. at 167–68 (internal citations and emphasis omitted). The Court also rejected the argument that the use of the abandoned ponds by migratory birds fell within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, or that the CWA regulated the use of the ponds as a municipal landfill because such use was commercial in nature. Id. at 173. Such arguments, the Court noted, raised ‘‘significant constitutional questions.’’ Id. ‘‘Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.’’ Id. at 172–73 (‘‘Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.’’). This is particularly true ‘‘where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.’’ Id. at 173; see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (‘‘[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’’’ (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985))); Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991) (‘‘[The] plain statement rule . . . acknowledg[es] that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.’’). ‘‘Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose [in the CWA] to ‘recognize, preserve, and protect the primary responsibilities and rights of States . . . to plan the development and use . . . of land and water resources . . . .’’ SWANCC, 531 U.S. at 174 (quoting 33 U.S.C. 1251(b)). The Court found no clear statement from Congress that it had intended to permit federal encroachment on traditional State power and construed the CWA to avoid the significant constitutional questions related to the scope of federal authority authorized therein. Id.29 Historically, the Federal government has interpreted and applied the SWANCC decision more narrowly, focusing on the specific holding in the case as rejecting federal jurisdiction over the isolated ponds and mudflats at issue in that case based on their use by migratory birds. By contrast, members of the regulated community, certain States and other interested stakeholders have VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22265 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 30 The agencies also recognize that Justice Stevens, writing for himself and three other Justices in dissent in SWANCC, interpreted the SWANCC majority opinion to apply beyond the Migratory Bird Rule and the specific ponds at issue in SWANCC. His dissent stated that the decision ‘‘invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.’’ 531 U.S. at 176–77 (Stevens, J., dissenting) (emphasis added). 31 Lake St. Clair is a Rivers and Harbors Act section 10 water. See p. 7: https:// www.lre.usace.army.mil/Portals/69/docs/ regulatory/PDFs/GENSEC10.pdf. It is also described in Justice Kennedy’s opinion in Rapanos as ‘‘a 430- square mile lake located between Michigan and Canada that is popular with boating and fishing and produces some 48 percent of the sport fish caught in the Great Lakes[.]’’ Rapanos, 547 U.S. at 764 (Kennedy, J., concurring in the judgment). argued that SWANCC stands for a broader proposition based on key federalism and separation of powers principles.30 In the preamble to the proposed rule, the agencies solicited comment as to the proper scope and interpretation of SWANCC. 84 FR 4165. Some commenters argued that the SWANCC decision should be interpreted narrowly to apply only to the facts presented in that case; other commenters argued that the agencies should apply the reasoning of the SWANCC decision broadly, in a manner similar to how the agencies had previously interpreted the reasoning of Justice Kennedy’s concurring opinion in Rapanos to extend beyond wetlands to tributaries and other waters, for example. The agencies agree with commenters that the interpretation and implementation of these Supreme Court decisions within agency regulatory programs should be consistent, and that the reasoning in the SWANCC decision stands for key principles related to federalism and the balancing of the traditional power of States to regulate land and water resources within their borders with the need for national water quality regulation. The agencies recently repealed the 2015 Rule and explained in the preamble of that action that the 2015 Rule had improperly allowed for the application of the significant nexus standard in a manner that would result in the assertion of jurisdiction over waters that the Court deemed non- jurisdictional in SWANCC. 84 FR 56626–27. By allowing federal jurisdiction to reach certain isolated ponds, such as those at issue in SWANCC, and certain physically remote wetlands that ‘‘do not implicate the boundary-drawing problem of Riverside Bayview,’’ the agencies concluded that the 2015 Rule asserted federal control over some features that ‘‘lack the necessary connection to covered waters . . . described as a ‘significant nexus’ in SWANCC[.]’’ Rapanos, 547 U.S. at 742 (Scalia, J., plurality); see also Hawkes, 136 S. Ct. at 1817 (Kennedy, J., concurring in the judgment) (‘‘[T]he reach and systemic consequences of the Clean Water Act remain a cause for concern.’’ (emphasis added)). This final rule, in contrast to the 2015 Rule, avoids pressing against the outer limits of the agencies’ authority under the Commerce Clause and Supreme Court case law and recognizes the limiting principles articulated by the SWANCC decision. This final rule would not allow for the exercise of jurisdiction over waters similar to those at issue in SWANCC. Several years after SWANCC, the Supreme Court considered the concept of adjacency in consolidated cases arising out of the Sixth Circuit. See Rapanos v. United States, 547 U.S. 715 (2006). In one case, the Corps had determined that wetlands on three separate sites were subject to CWA jurisdiction because they were adjacent to ditches or man-made drains that eventually connected to traditional navigable waters several miles away through other ditches, drains, creeks, and rivers. Id. at 719–20, 729. In another case, the Corps had asserted jurisdiction over a wetland separated from a man- made drainage ditch by a four-foot-wide man-made berm. Id. at 730. The ditch emptied into another ditch, which then connected to a creek, and eventually connected to Lake St. Clair,31 a traditional navigable water, approximately a mile from the parcel at issue. The berm was largely or entirely impermeable but may have permitted occasional overflow from the wetland to the ditch. Id. The Court, in a fractured opinion, vacated and remanded the Sixth Circuit’s decision upholding the Corps’ asserted jurisdiction over the four wetlands at issue, with Justice Scalia writing for the plurality and Justice Kennedy concurring in the judgment but on alternative grounds. Id. at 757 (Scalia, J., plurality); id. at 787 (Kennedy, J., concurring in the judgment). The plurality determined that CWA jurisdiction extended to only adjacent ‘‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.’’ Rapanos, 547 U.S. at 742 (Scalia, J., plurality). The plurality then concluded that ‘‘establishing . . . wetlands . . . covered by the Act requires two findings: First, that the adjacent channel contains a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’’ Id. (alteration in original). In reaching the adjacency component of the two-part analysis, the plurality interpreted Riverside Bayview and the Court’s subsequent SWANCC decision characterizing Riverside Bayview as authorizing jurisdiction over wetlands that physically abutted traditional navigable waters. Id. at 740–42. The plurality focused on the ‘‘inherent ambiguity’’ described in Riverside Bayview in determining where on the continuum between open waters and dry land the scope of federal jurisdiction should end. Id. at 740. It was ‘‘the inherent difficulties of defining precise bounds to regulable waters,’’ id. at 741 n.10, according to the plurality, that prompted the Court in Riverside Bayview to defer to the Corps’ inclusion of adjacent wetlands as ‘‘waters’’ subject to CWA jurisdiction based on proximity. Id. at 741 (‘‘When we characterized the holding of Riverside Bayview in SWANCC, we referred to the close connection between waters and the wetlands they gradually blend into: ‘It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.’’’); see also Riverside Bayview, 474 U.S. at 134 (‘‘For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.’’ (quoting 42 FR 37128 (July 19, 1977))). The plurality also noted that ‘‘SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside Bayview ... provided an independent basis for including entities like ‘wetlands’ (or ‘ephemeral streams’) within the phrase ‘the waters of the United States.’ SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps’ jurisdiction.’’ Rapanos, 547 U.S. at 741–42 (emphasis in original). Justice Kennedy disagreed with the plurality’s conclusion that adjacency requires a ‘‘continuous surface connection’’ to covered waters. Id. at 772 (Kennedy, J., concurring in the judgment). In reading the phrase ‘‘continuous surface connection’’ to mean a continuous ‘‘surface-water connection,’’ id. at 776 (emphasis VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22266 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 32 In the Rapanos Guidance, the agencies interpreted the plurality’s ‘‘continuous surface connection’’ as not requiring a continuous surface water connection. See, e.g., Rapanos Guidance at 7 n.28 (‘‘A continuous surface connection does not require surface water to be continuously present between the wetland and the tributary.’’). The agencies continue to endorse that interpretation. In Rapanos, both Justice Scalia and Justice Kennedy recognized that a wetland can be adjacent to a jurisdictional water absent inundation from that water. added), and interpreting the plurality’s standard to include a ‘‘surface-water- connection requirement,’’ id. at 774 (emphasis added), Justice Kennedy stated that ‘‘when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters—even though such navigable waters were traditionally subject to federal authority.’’ Id. at 776. He noted that the Riverside Bayview Court ‘‘deemed it irrelevant whether ‘the moisture creating the wetlands . . . find[s] its source in the adjacent bodies of water.’’ Id. at 772 (internal citations omitted); see also Riverside Bayview, 474 U.S. at 134 (‘‘[A]djacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water.’’). The plurality did not directly address the precise distinction raised by Justice Kennedy regarding his interpretation of the plurality’s ‘‘continuous surface connection’’ requirement to mean a continuous ‘‘surface-water connection.’’ The plurality did note in response, however, that the ‘‘Riverside Bayview opinion required’’ a ‘‘continuous physical connection,’’ Rapanos, 547 U.S. at 751 n.13 (Scalia, J., plurality) (emphasis added), and focused on evaluating adjacency between a ‘‘water’’ and a wetland ‘‘in the sense of possessing a continuous surface connection that creates the boundary- drawing problem we addressed in Riverside Bayview.’’ Id. at 757. The plurality also noted that its standard includes a ‘‘physical-connection requirement,’’ not hydrological, between wetlands and covered waters. Id. at 751 n.13 (emphasis added). In other words, the plurality appeared to be more focused on the abutting nature rather than the source of water creating the wetlands at issue in Riverside Bayview to describe the legal constructs applicable to adjacent wetlands. See id. at 747; see also Webster’s II, New Riverside University Dictionary (1994) (defining ‘‘abut’’ to mean ‘‘to border on’’ or ‘‘to touch at one end or side of something’’). The plurality agreed with Justice Kennedy and the Riverside Bayview Court that ‘‘[a]s long as the wetland is ‘adjacent’ to covered waters . . . its creation vel non by inundation is irrelevant.’’ Rapanos, 547 U.S. at 751 n.13 (Scalia, J., plurality).32 Because wetlands with a physically remote hydrologic connection do not raise the same boundary-drawing concerns presented by actually abutting wetlands, the plurality determined that the ‘‘inherent ambiguity in defining where water ends and abutting (‘adjacent’) wetlands begin’’ upon which Riverside Bayview rests does not apply to such features. Id. at 742 (‘‘Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ in SWANCC[.]’’). The plurality supported this position by referring to the Court’s treatment of certain isolated waters in SWANCC as non- jurisdictional. Rapanos, 547 U.S. at 741–42; see also id. at 726 (‘‘We held that ‘nonnavigable, isolated, intrastate waters—which, unlike the wetlands at issue in Riverside Bayview, did not ‘actually abu[t] on a navigable waterway,’—were not included as ‘waters of the United States.’’’) (internal citations omitted). It interpreted the reasoning of SWANCC to exclude isolated waters. The plurality also found ‘‘no support for the inclusion of physically unconnected wetlands as covered ‘waters’’’ based on Riverside Bayview’s treatment of the Corps’ definition of adjacent. Id. at 747; see also id. at 746 (‘‘[T]he Corps’ definition of ‘adjacent’ . . . has been extended beyond reason . . . .’’). Although ultimately concurring in the judgment, Justice Kennedy focused on the ‘‘significant nexus’’ between adjacent wetlands and traditional navigable waters as the basis for determining whether a wetland is a water subject to CWA jurisdiction. He quotes the SWANCC decision, which explains that ‘‘[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the [Act] in Riverside Bayview Homes.’’ SWANCC, 531 U.S. at 167. But Justice Kennedy also interpreted the reasoning of SWANCC to exclude certain isolated waters. His opinion notes that: ‘‘Because such a nexus [in that case] was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps’ action.’’ Rapanos, 547 U.S. at 767 (Kennedy, J., concurring in the judgment) (internal citation omitted). It further states that the wetlands at issue in Riverside Bayview were ‘‘adjacent to [a] navigable-in-fact waterway[]’’ while the ‘‘ponds and mudflats’’ considered in SWANCC ‘‘were isolated in the sense of being unconnected to other waters covered by the Act.’’ Id. at 765–66. ‘‘Taken together, these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a ‘navigable water’ under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.’’ Id. at 767. According to Justice Kennedy, whereas the isolated ponds and mudflats in SWANCC lacked a ‘‘significant nexus’’ to navigable waters, it is the ‘‘conclusive standard for jurisdiction’’ based on ‘‘a reasonable inference of ecological interconnection’’ between adjacent wetlands and navigable-in-fact waters that allows for their categorical inclusion as ‘‘waters of the United States.’’ Rapanos, 547 U.S. at 780 (‘‘[T]he assertion of jurisdiction for those wetlands [adjacent to navigable- in-fact waters] is sustainable under the Act by showing adjacency alone.’’). Justice Kennedy surmised that it may be that the same rationale ‘‘without any inquiry beyond adjacency . . . could apply equally to wetlands adjacent to certain major tributaries.’’ Id. He noted that the Corps could establish by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other relevant factors that ‘‘are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.’’ Id. at 780–81. However, ‘‘[t]he Corps’ existing standard for tributaries’’ provided Justice Kennedy ‘‘no such assurance’’ to infer the categorical existence of a requisite nexus between waters traditionally understood as navigable and wetlands adjacent to nonnavigable tributaries. Id. at 781. That is because: [T]he breadth of the [tributary] standard— which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it—precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases, wetlands VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22267 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope in SWANCC. Rapanos, 547 U.S. at 781–82. To avoid this outcome, Justice Kennedy stated that, absent development of a more specific regulation and categorical inclusion of wetlands adjacent to ‘‘certain major’’ or even ‘‘minor’’ tributaries as was established in Riverside Bayview, id. at 780–81, the Corps ‘‘must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps’ regulations, this showing is necessary to avoid unreasonable applications of the statute.’’ Id. at 782. Justice Kennedy stated that adjacent ‘‘wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ Id. at 780. ‘‘Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region.’’ Id. at 782. In establishing this significant nexus test, Justice Kennedy relied, in part, on the overall objective of the CWA to ‘‘restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’’ Id. at 779 (quoting 33 U.S.C. 1251(a)). However, Justice Kennedy also acknowledged that ‘‘environmental concerns provide no reason to disregard limits in the statutory text.’’ Id. at 778. With respect to wetlands adjacent to nonnavigable tributaries, Justice Kennedy therefore determined that ‘‘mere adjacency . . . is insufficient[.] A more specific inquiry, based on the significant-nexus standard, is . . . necessary.’’ Id. at 786. Justice Kennedy noted that under the Corps’ interpretation at issue in the case, which did not require adjacent wetlands to possess a significant nexus with navigable waters, federal regulation would be permitted ‘‘whenever wetlands lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters. The deference owed to the Corps’ interpretation of the statute does not extend so far.’’ Id. at 778–79. Since the Rapanos decision, the Federal government has adopted a broad interpretation of Justice Kennedy’s concurring opinion, arguing that his ‘‘significant nexus’’ test provides an independent basis for establishing jurisdiction over certain waters of the United States. And rather than limiting the application of Justice Kennedy’s opinion to the specific facts and wetlands at issue in that case, similar to their treatment of the SWANCC decision, the agencies previously have applied Justice Kennedy’s reasoning more broadly to include, for example, the application of the significant nexus test to determining jurisdiction over tributaries, not just wetlands. Many courts have deferred to this position, and some courts rely exclusively on Justice Kennedy’s significant nexus test while other courts have held that jurisdiction can be established under either the plurality or concurring opinions. The agencies’ final rule, as explained in Section III, is informed in several key aspects by Justice Kennedy’s opinion, but the agencies now appropriately recognize some of the limiting principles articulated within his concurring opinion. The agencies also recognize that the reasoning in SWANCC contains more instruction than the agencies have historically acknowledged. In summary, although the standards that the Rapanos plurality and Justice Kennedy established are not identical, and each standard excludes some waters and wetlands that the other standard does not, the standards contain substantial similarities. The plurality and Justice Kennedy agreed in principle that the determination must be made using a basic two-step approach that considers (1) the connection of the wetland to the tributary; and (2) the status of the tributary with respect to downstream traditional navigable waters. The plurality and Justice Kennedy also agreed that the connection between the wetland and the tributary must be close. The plurality referred to that connection as a ‘‘continuous surface connection’’ or ‘‘continuous physical connection,’’ as demonstrated in Riverside Bayview. Id. at 742, 751 n.13. Justice Kennedy recognized that ‘‘the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a ‘navigable water’ under the Act.’’ Id. at 767. The second part of their common analytical framework is addressed in the next section. b. Tributaries As some commenters noted, the definition of ‘‘tributary’’ was not addressed in either Riverside Bayview or SWANCC, nor were tributaries the waters at issue in Rapanos. Yet while the focus of Rapanos was on whether the Corps could regulate wetlands adjacent to nonnavigable tributaries far removed from navigable-in-fact waters, the plurality and concurring opinions provide some guidance as to the scope of CWA coverage of tributaries to waters more traditionally understood as navigable. The plurality and Justice Kennedy both recognized the jurisdictional scope of the CWA is not restricted to traditional navigable waters. Rapanos, 547 U.S. at 731 (Scalia, J., plurality) (‘‘[T]he Act’s term ‘navigable waters’ includes something more than traditional navigable waters.’’); id. at 767 (Kennedy, J., concurring in the judgment) (‘‘Congress intended to regulate at least some waters that are not navigable in the traditional sense.’’). Both also agreed that federal authority under the Act has limits. See id. at 731– 32 (Scalia, J., plurality) (‘‘‘[T]he waters of the United States’ . . . cannot bear the expansive meaning that the Corps would give it.’’); id. at 778–79 (Kennedy, J., concurring in the judgment) (‘‘The deference owed to the Corps’ interpretation of the statute does not extend’’ to ‘‘wetlands’’ which ‘‘lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters.’’). With respect to tributaries specifically, both the plurality and Justice Kennedy focused in part on a tributary’s contribution of flow to and connection with traditional navigable waters. The plurality would include as ‘‘waters of the United States’’ ‘‘only relatively permanent, standing or flowing bodies of water’’ and would define such ‘‘waters’’ as including streams, rivers, oceans, lakes and other bodies of waters that form geographical features, noting that all such ‘‘terms connote continuously present, fixed bodies of water.’’ Rapanos, 547 U.S. at 732–33, 739 (Scalia, J., plurality). The plurality would have also required relatively permanent waters to be connected to traditional navigable waters in order to be jurisdictional. See id. at 742 (describing a ‘‘‘wate[r] of the United States’’’ as ‘‘i.e., a relatively permanent body of water connected to traditional interstate navigable waters’’) (emphasis added). The plurality would also have excluded ephemeral flows and related features, stating ‘‘[n]one of these terms encompasses transitory puddles or ephemeral flows of water.’’ Id. at 733; see also id. at 734 (‘‘In applying the definition to ‘ephemeral streams,’ . . . VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22268 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘Land Is Waters’ approach to federal jurisdiction.’’). Justice Kennedy likely would exclude some streams considered jurisdictional under the plurality’s opinion, but he may include some that would be excluded by the plurality. See id. at 769 (Kennedy, J., concurring in the judgment) (noting that under the plurality’s test, ‘‘[t]he merest trickle, if continuous, would count as a ‘water’ subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not’’). Both the plurality and Justice Kennedy would have included some seasonal or intermittent streams as waters of the United States. Rapanos, 547 U.S. at 732 n.5, 733 (Scalia, J., plurality); id. at 769 (Kennedy, J., concurring in the judgment). The plurality noted, for example, that its reference to ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.’’ Id. at 732 n.5 (emphasis in original). Neither the plurality nor Justice Kennedy, however, defined with precision where to draw the line. See, e.g., id. (Scalia, J., plurality) (‘‘[W]e have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a ‘wate[r] of the United States.’ It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that . . . streams whose flow is ‘[c]oming and going at intervals . . . [b]roken, fitful,’ . . . or ‘existing only, or no longer than, a day; diurnal . . . short-lived,’ . . . are not.’’) (internal citations omitted). The plurality provided, however, that ‘‘navigable waters’’ must have ‘‘at a bare minimum, the ordinary presence of water,’’ id. at 734, and Justice Kennedy noted that the Corps can identify by regulation categories of tributaries based on ‘‘their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations’’ that ‘‘are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters,’’ id. at 780–81 (Kennedy, J., concurring in the judgment). Both the plurality and Justice Kennedy also agreed that the Corps’ existing treatment of tributaries raised significant jurisdictional concerns. For example, the plurality was concerned about the Corps’ broad interpretation of tributaries. See Rapanos, 547 U.S. at 738 (Scalia, J., plurality) (‘‘Even if the term ‘the waters of the United States’ were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.’’). And Justice Kennedy objected to the categorical assertion of jurisdiction over wetlands adjacent to waters deemed tributaries under the Corps’ then-existing standard, ‘‘which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in- fact water and carrying only minor water volumes towards it.’’ Id. at 781 (Kennedy, J., concurring in the judgment); see also id. at 781–82 (‘‘[I]n many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope in SWANCC.’’). Beyond tributaries, the plurality and Justice Kennedy also offered some insight regarding CWA jurisdiction with respect to other relatively permanent bodies of water, such as lakes and ponds, and their connection to traditional navigable waters. The plurality describes a ‘‘water of the United States’’ as ‘‘a relatively permanent body of water connected to traditional interstate navigable waters[.]’’ Id. at 742 (emphasis added). The plurality did not specify, however, what would constitute a sufficient connection between such relatively permanent waters and downstream traditional navigable waters. When considered in the context of Justice Scalia’s entire opinion, the plurality signaled concern that certain types of connections are likely insufficient to maintain jurisdiction; for instance, by characterizing an ‘‘expansive definition of ‘tributaries’’’ as one that includes ‘‘dry arroyos connected to remote waters through the flow of groundwater over ‘centuries,’’’ id. at 725–26 (internal citations omitted), and describing potential federal control over ‘‘irrigation ditches and drains that intermittently connect to covered waters’’ as ‘‘sweeping.’’ Id. at 726–27. In addition to ‘‘tributaries,’’ the plurality noted that the Corps and lower courts have ‘‘define[d] ‘adjacent’ wetlands broadly’’ to include wetlands ‘‘hydrologically connected’’ ‘‘to covered waters’’ ‘‘through directional sheet flow during storm events,’’ and wetlands ‘‘connected to the navigable water by flooding, on average, once every 100 years[.]’’ Rapanos, 547 U.S. at 728 (internal quotations and citations omitted). Justice Kennedy noted that ‘‘in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water . . . and a navigable water may be so close, or potentially so close, that the Corps may deem the water . . . a ‘navigable water’ under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection.’’ Id. at. 767 (Kennedy, J., concurring in the judgment). Justice Kennedy also stated that ‘‘mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 784–85. Some commenters agreed that aspects of the plurality’s and Justice Kennedy’s opinions share similarities regarding the limits of federal jurisdiction under the CWA, while other commenters disagreed that the opinions share important commonalities. These commenters asserted that the opinions have disparate rationales that cannot be reconciled. While the agencies acknowledge that the plurality and Justice Kennedy viewed the question of federal CWA jurisdiction differently, as discussed above, the agencies find that there are sufficient commonalities between these opinions to help instruct the agencies on where to draw the line between Federal and State waters. 3. Principles and Considerations As discussed in the previous sections, a few important principles emerge that can serve as the basis for the agencies’ final regulatory definition. As a threshold matter, the power conferred on the agencies under the CWA to regulate the waters of the United States is grounded in Congress’ commerce power over navigation. The agencies can choose to regulate beyond waters more traditionally understood as navigable, including some tributaries and relatively permanent bodies of water connected to those traditional navigable waters, but the agencies must provide a reasonable basis grounded in the language and structure of the Act for determining the extent of jurisdiction. The agencies can also choose to regulate wetlands adjacent to covered waters beyond those traditionally understood as navigable, if the wetlands are closely connected to those waters, such as in the transitional zone between open waters and dry land. The Supreme VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22269 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations Court’s opinion in SWANCC, however, calls into question the agencies’ authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters. The decision counsels that the agencies should avoid regulatory interpretations of the CWA that raise constitutional questions regarding the scope of their statutory authority. Finally, the agencies can regulate certain waters by category, which could improve regulatory predictability and certainty and ease administrative burdens while still effectuating the purposes of the Act. In developing an appropriate regulatory framework for the final rule, the agencies recognize and respect the primary responsibilities and rights of States to regulate their land and water resources as reflected in CWA section 101(b). 33 U.S.C. 1251(b), see also id. at 1370. The oft-quoted objective of the CWA to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’’ id. at 1251(a), must be implemented in a manner consistent with Congress’ policy directives to the agencies. The Supreme Court long ago recognized the distinction between federal waters traditionally understood as navigable and waters ‘‘subject to the control of the States.’’ The Daniel Ball, 77 U.S. (10 Wall.) 557, 564–65 (1870). Over a century later, the Supreme Court in SWANCC reaffirmed the State’s ‘‘traditional and primary power over land and water use.’’ SWANCC, 531 U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality). While CWA section 101(b) does not specifically identify Tribes, the policy of preserving States’ sovereign authority over land and water use is equally relevant to ensuring the primary authority of Tribes to address pollution and plan the development and use of tribal land and water resources. This final rule recognizes and preserves the autonomy of Tribes just as it recognizes and preserves the authority of States. Ensuring that States and Tribes retain authority over their land and water resources, reflecting the policy in section 101(b), helps carry out the overall objective of the CWA and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act. See, e.g., Rapanos, 547 U.S. at 755–56 (Scalia, J., plurality) (‘‘[C]lean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U.S.C. 1251(b).’’) (emphasis in original). That includes the dozens of non-regulatory grant, research, nonpoint source, groundwater, and watershed planning programs that were intended by Congress to assist the States in controlling pollution in the nation’s waters, not just its navigable waters. These non-regulatory sections of the CWA reveal Congress’ intent to restore and maintain the integrity of the nation’s waters using federal assistance to support State, tribal, and local partnerships to control pollution of the nation’s waters in addition to a federal regulatory prohibition on the discharge of pollutants to its navigable waters. See e.g., id. at 745 (‘‘It is not clear that the state and local conservation efforts that the CWA explicitly calls for, see 33 U.S.C. 1251(b), are in any way inadequate for the goal of preservation.’’). Regulating all of the nation’s waters using the Act’s federal regulatory mechanisms would call into question the need for the more holistic planning provisions of the Act and the State partnerships they entail. Therefore, by recognizing the distinctions between the nation’s waters and its navigable waters and between the overall objective and goals of the CWA and the specific policy directives from Congress, the agencies can fully implement the entire structure of the Act while respecting the specific word choices of Congress. See, e.g., Bailey, 516 U.S. at 146; Nat’l Fed’n of Indep. Bus., 567 U.S. at 544. Some commenters agreed with the interpretation that the CWA establishes a comprehensive scheme to achieve the Act’s objective through a combination of non-regulatory programs and grants for all of the nation’s waters, and a more targeted federal permitting program for discharges of pollutants to the subset of the nation’s waters identified as waters of the United States. Other commenters expressed concern that the proposed rule would not further the CWA’s objective to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’’ 33 U.S.C. 1251(a), because fewer waters would be jurisdictional under the proposal than were regulated under the 2015 Rule or the pre-2015 regulatory regime. The agencies disagree with these commenters. The agencies are mindful that ‘‘no legislation pursues its purposes at all costs,’’ Rodriguez v. United States, 480 U.S. 522, 525–26 (1987), including the CWA. The CWA’s objective must be balanced with the policy of Congress to preserve the primary State responsibility for ordinary land-use decisions. The purpose of this rulemaking is to establish the boundary between regulated ‘‘waters of the United States’’ and the waters subject solely to State and tribal authority. The CWA’s longstanding regulatory permitting programs, coupled with the controls that States, Tribes, and local entities choose to exercise over their land and water resources, will continue to address the discharge of pollutants into waters of the United States, and the CWA’s non-regulatory measures will continue to address pollution of the nation’s waters generally. These programs and measures collectively pursue the objective of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. Some commenters agreed with the statements in the preamble to the proposed rule that the CWA preserves a significant and primary role for the States in implementing various aspects of the CWA, reflecting an intent to balance the States’ traditional powers to regulate land and water resources within their borders with the need for national water quality regulation. Other commenters stated that section 101(b) is primarily concerned with State implementation of water pollution control measures, not the jurisdictional reach of the Act, and that a lawful and protective definition of jurisdictional waters under the Act does not disturb or undermine the States’ exercise of primary authority. Rather, they expressed concern that the rule would harm the States in exercising their authority as envisioned by section 101(b) by, for example, increasing the financial and administrative burden on States to protect their waters. The agencies interpret the policy of Congress, set forth in section 101(b), as relevant to all aspects of the implementation of the CWA, both implementing federally-established standards as well as the scope of waters subject to such standards and regulatory programs. When promulgating the 2015 Rule, the agencies endorsed a narrower view of Congress’ policy in section 101(b) as limited to implementation of the Act’s regulatory programs by States and State authority to impose conditions on ‘‘waters of the United States’’ that are more stringent than the conditions that the agencies impose under the Act. In the final Step One Rule, the agencies concluded that such a view was improperly narrow and failed to place sufficient weight on the policy of Congress in section 101(b). See 84 FR 56654. Having considered the public comments submitted in this rulemaking, the agencies remain of the view that nothing in section 101(b) suggests that it is limited to implementing federal regulatory programs or imposing conditions on VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22270 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations ‘‘waters of the United States’’ that are more stringent than the conditions that the agencies impose under the Act. Indeed, the overarching policy statement of 101(b) ‘‘to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use . . . of land and water resources,’’ was included in the Act in 1972; the additional 101(b) policy statement ‘‘that the States . . . implement the permit programs under sections 402 and 404 of this Act’’ was not added until the 1977 amendments. 91 Stat. 1567, 1575 Public Law 95–217 (1977); see also Rapanos, 547 U.S. at 737 (Scalia, J., plurality) (‘‘Thus, the policy [to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use . . . of land and water resources] plainly referred to something beyond the subsequently added state administration program of 33 U.S.C. 1344(g)–(l).’’) (citations omitted). The agencies acknowledge that States without comprehensive pre-existing programs that seek to regulate waters no longer jurisdictional under this final rule may incur new costs and administrative burdens, and they discuss those costs in the Economic Analysis for the final rule. Such obligations are inherent in the exercise of the States’ authority that Congress embedded in the CWA. States are free to evaluate the most effective means of addressing their waters and may weigh the costs and benefits of doing so. The agencies also heard from Tribes that because the agencies generally implement CWA programs on tribal lands, the proposed rule would affect Tribes differently than it would affect most States. Some Tribes have received Treatment as a State status to administer CWA programs, and other Tribes have established tribal water programs under tribal law or have the authority to establish such tribal water programs. Other Tribes may currently lack the capacity to create a tribal water program, to administer a program, or to expand programs that currently exist, and may rely on the Federal government for enforcement of water quality violations. See Chapter III of the Resource and Programmatic Assessment (RPA) for the final rule. The final rule preserves tribal authority to choose whether or not to regulate waters that are not covered under the CWA. The agencies are also cognizant that the ‘‘Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit.’’ Hawkes, 136 S. Ct. at 1812; see also Sackett, 132 S. Ct. at 1374–75 (Alito, J., concurring) (‘‘[T]he combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.’’). As the Chief Justice observed in Hawkes, ‘‘[i]t is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.’’ 136 S. Ct. at 1812; see also id. at 1816–17 (Kennedy, J., concurring in the judgment) (stating that ‘‘the reach and systemic consequences of the Clean Water Act remain a cause for concern’’ and ‘‘continue[] to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation’’). Given the significant civil and criminal penalties associated with the CWA, the agencies seek to promote regulatory certainty and to provide fair and predictable notice of the limits of federal jurisdiction. A number of commenters expressed support for the emphasis on the importance of fair notice in the proposed rule and cited in support Justice Gorsuch’s concurring opinion in Sessions v. Dimaya, 138 S. Ct. 1204, 1223–25 (2018) (characterizing fair notice as possibly the most fundamental of the customary protections provided by the Constitution’s guarantee of due process, and stating that vague laws are an exercise of ‘‘arbitrary power . . . leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up’’). The agencies interpret their authority to include promulgation of a new regulatory definition of ‘‘waters of the United States,’’ as directed by Executive Order 13778, so long as the new definition is authorized under the law and based on a reasoned explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (‘‘Fox’’). A revised rulemaking based on a change in interpretation of statutory authorities is well within federal agencies’ discretion. Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514–15). Under this rule, the agencies do not view the definition of ‘‘waters of the United States’’ as conclusively determining which of the nation’s waters warrant environmental protection and which do not; rather, the agencies interpret the definition as drawing the boundary between those waters subject to federal requirements under the CWA and those waters that States and Tribes are free to manage under their independent authorities. The agencies are establishing this line-drawing based primarily on their interpretation of their authority under the Constitution and the language, structure, and legislative history of the CWA, as articulated in decisions by the Supreme Court. Some commenters viewed the proposed rule as complicated and, because one of the agencies’ goals in proposing a new definition was to provide simplicity and clarity, stated that the proposal failed to meet that goal and is therefore arbitrary and capricious. The agencies disagree with these commenters’ view that the proposed rule would not have provided necessary clarity. Notwithstanding this disagreement, the agencies have made certain enhancements to the final rule that will further promote clarity and provide fair notice to the public. As a threshold matter, the agencies for the first time have streamlined the regulatory text to four simple categories of jurisdictional waters, provided clear exclusions for many water features that traditionally have not been regulated, and defined the operative terms used in the regulatory text. And while the categories of jurisdiction in the final rule must be applied to specific facts to determine jurisdiction, the final rule does not include a regulatory category of case-specific jurisdiction as the 2015 Rule did in paragraphs (a)(7) and (a)(8). As such, the agencies believe the final rule will be clearer than either the 2015 Rule or the pre-existing regulatory regime restored by the 2019 Rule. However, clarity as an end in itself is not the primary or fundamental basis for the final rule. Section III of this notice describes in detail the fundamental bases for this rule as the text and structure of the CWA and the constitutional boundaries within which Congress enacted the CWA. The final rule is securely grounded in the text of the CWA and is supported by legislative history and Supreme Court case law. As to simplicity and clarity, the agencies acknowledge that field work may frequently be necessary to verify whether a feature is a water of the United States; however, replacing the multi-factored case-specific significant nexus analysis with categorically jurisdictional and categorically excluded waters in the final rule provides clarifying value for members of the regulated community. The application of a clear test for categorically covered and excluded VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22271 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 33 As part of the 2015 Rule, EPA’s SAB stressed that ‘‘the EPA should recognize that there is a gradient of connectivity.’’ See Letter to Gina McCarthy. SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence at 3 (Oct. 17, 2014) (‘‘SAB Review’’). The SAB recommended that ‘‘the interpretation of connectivity be revised to reflect a gradient approach that recognizes variation in the frequency, duration, magnitude, predictability, and consequences of physical, chemical, and biological connections.’’ Id. at 2 (emphasis added); see also Connectivity Report at 1–18 (‘‘Variation in the degree of connectivity is critical to the integrity and sustainability of downstream waters, and can be described in terms of the frequency, duration, magnitude, timing, and rate of change of fluxes to and biological exchanges with downstream waters. These descriptors characterize the range over which streams and wetlands vary and shift along connectivity gradients and the probable effects of different types (hydrologic, chemical, biological) and degrees of connectivity over time.... Ultimately, differences in the frequency, duration, magnitude, timing, and rate of change of physical, chemical, and biological connections describe different positions along the connectivity gradient and produce different types of downstream effects.’’). waters, as presented in this final rule, is inherently less complicated than a complex multi-factored significant nexus test that must be applied on a case-by-case basis to countless waters and wetlands across the nation. Some commenters stated that the agencies’ desire to facilitate implementation of the regulatory definition does not override the agencies’ legal obligations under the CWA, including fulfillment of the goals of the CWA. The agencies agree in principle. The agencies have determined that requiring surface water flow in a typical year from relatively permanent bodies of water to traditional navigable waters and wetlands adjacent to such waters as a core requirement of the rule is the most faithful way of interpreting the Federal government’s CWA authority over a water. The agencies carefully considered the comments received on the proposal and have made certain revisions to the regulatory text that provide further clarity without sacrificing or undermining the fundamental legal and constitutional bases for the rule. A number of commenters stated that the proposed rule failed to incorporate scientific and ecological principles into the definition of ‘‘waters of the United States.’’ The agencies disagree. While science informs the agencies’ interpretation of the definition of ‘‘waters of the United States,’’ science cannot dictate where to draw the line between Federal and State or tribal waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA. The definition of ‘‘waters of the United States’’ must be grounded in a legal analysis of the limits on CWA jurisdiction reflected in the statute and Supreme Court case law. The agencies are precluded from exceeding their authority under the CWA to achieve specific scientific, policy, or other outcomes. Within the legal limits of the CWA, the agencies have looked to scientific principles to inform implementation of the final rule as the agencies differentiate between waters of the United States and non-jurisdictional waters and features. For example, and as discussed further in Section III.A.1, in requiring the use of a ‘‘typical year’’ scenario to assess the surface water connection between a particular water or wetland and a downstream water identified in paragraph (a)(1), (2), or (3) (generally referred to as ‘‘paragraph (a)(1) through (3) waters’’ or ‘‘a paragraph (a)(1) through (3) water’’ in this notice), the agencies recognize the influence of precipitation, evapotranspiration, and other climatic variables on the flow of surface water in a tributary and its contribution of flow to downstream waters and the hydrologic surface connection between a jurisdictional water and an adjacent wetland. In other words, the agencies will evaluate the flow regime of a stream and the connectedness of a wetland within the context of what is typical for that water or wetland to avoid making erroneous jurisdictional determinations at times that may be too wet or too dry to be considered ‘‘normal.’’ The agencies also looked to science to inform other aspects of the final rule; for example, in defining the terms ‘‘perennial,’’ ‘‘intermittent,’’ and ‘‘ephemeral’’; in establishing that wetlands separated from jurisdictional waters only by a natural berm, bank, dune, or similar natural feature are ‘‘inseparably bound up with’’ and adjacent to those waters; and in accounting for the connectivity gradient 33 in deciding how to apply key principles from the Riverside Bayview, SWANCC, and Rapanos decisions. The agencies consider the priorities they have outlined to be reasonable, especially in light of the long history of controversy and confusion over the definition of ‘‘waters of the United States.’’ In concurring with the Rapanos plurality opinion, Chief Justice Roberts stated that ‘‘[g]iven the broad, somewhat ambiguous, but clearly limiting terms Congress employed in the Clean Water Act, the [agencies] would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority’’ under the CWA, and that the agencies’ interpretations under the Act are ‘‘afforded generous leeway by the courts.’’ Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring) (emphasis in original); see also id. (‘‘Rather than refining its view of its authority in light of our decisions in SWANCC, . . . the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.’’). In this rule, as described in detail in Section III, the agencies are reasonably interpreting the scope of their authority under the Act in a manner that is consistent with its text, structure, legislative history, and applicable Supreme Court guidance. This final rule presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas. F. Summary of Final Rule as Compared to the 1986 Regulations Recodified in the 2019 Rule and the 2015 Rule The agencies are finalizing a definition of ‘‘waters of the United States’’ that they consider to be superior to the 1986 regulations re-codified in the 2019 Rule, as well as to the 2015 Rule. The agencies are revising previous regulatory definitions of this term to distinguish between waters that are ‘‘waters of the United States’’ subject to Federal regulation under the CWA and waters or features that are subject to exclusive State or tribal jurisdiction, consistent with the scope of jurisdiction authorized under the CWA and the direction in the Act to both ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’’ 33 U.S.C. 1251(a), and ‘‘recognize, preserve, and protect the primary responsibilities and rights of States to . . . plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .’’ Id. at 1251(b). The Supreme Court has recognized that new administrations may reconsider the policies of their predecessors so long as they provide a reasonable basis for the change in approach. Nat’l Ass’n of Home Builders, 682 F.3d at 1043 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part)). The agencies intend that the revised interpretation of the federal regulatory scope of the CWA will resolve longstanding confusion over broad and unclear definitions of ‘‘waters of the United States.’’ This final rule is more consistent with the agencies’ constitutional and statutory authority than the 2015 Rule, VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22272 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 34 To the extent that, as a result of litigation, the 1986 and 1988 regulations, which the 2019 Rule recodified, remain or become legally effective after for the reasons discussed in the preamble to the 2019 Rule as well as the rest of this section and Section III of this notice. The 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the CWA as intended by Congress and as reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos. In the 2019 Rule, the agencies concluded that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to ‘‘recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’’ and ‘‘to plan the development and use . . . of land and water resources.’’ 33 U.S.C. 1251(b). The 2015 Rule interpreted the CWA in a manner that pushed the envelope of the agencies’ constitutional and statutory authority in the absence of a clear statement from Congress authorizing substantial encroachment upon traditional State land-use planning authority. See Georgia v. Wheeler, No. 2:15–cv–079, 2019 WL 3949922, at *23 (S.D. Ga. Aug. 21, 2019) (finding the 2015 Rule ‘‘unlawful’’ given its ‘‘significant intrusion on traditional state authority’’ without ‘‘any clear or manifest statement to authorize intrusion into that traditional state power’’). In addition, the agencies recognize that the 2015 Rule has been remanded by the U.S. District Court for the Southern District of Texas for failing to comply with the APA. That court found that the 2015 Rule suffered from several problems, including that the distance- based limitations in the 2015 Rule were not a logical outgrowth of the proposal in violation of the APA’s public notice and comment requirements. See Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. 2019). The court found this error ‘‘significant’’ because the specific distance-based limitations ‘‘alter[ed] the jurisdictional scope of the Act.’’ Id. at 504. Litigants challenging the 2015 Rule alleged other APA deficiencies, including the lack of record support for the distance-based limitations inserted into the final rule without adequate notice. Several commenters on the proposed repeal of the 2015 Rule raised similar concerns, arguing that the 2015 Rule was arbitrary and capricious because of the lack of record support for those limitations. The agencies recognize that the Federal government, in prior briefs before the various district courts that heard challenges to the 2015 Rule, defended the procedural steps the agencies took to develop and support the 2015 Rule. Having considered the public comments and relevant litigation positions, and the decision of the Southern District of Texas on related arguments, the agencies concluded in the 2019 rulemaking that the administrative record for the 2015 Rule did not contain sufficient record support for the distance-based limitations that appeared for the first time in that final rule. This conclusion is further supported by similar findings of the U.S. District Court for the Southern District of Georgia, which remanded the 2015 Rule to the agencies in August 2019 after identifying substantive and procedural errors with respect to numerous provisions, including the rule’s distance limitations. Georgia v. Wheeler, 2019 WL 3949922, at *12–32. By contrast, for the reasons discussed elsewhere in this section and in Section III of this notice, this final rule remains within the bounds of the agencies’ authority under the Constitution and the CWA, is properly supported by the record in this rulemaking, and is a logical outgrowth of the NPRM. Finally, the agencies believe that this final rule will be clearer than the pre- existing regulatory regime restored by the regulatory text of the 2019 Rule and the prior implementation of that regime in response to adverse Supreme Court decisions and agency guidance. For the reasons discussed in the 2019 Rule preamble, that regulatory regime is preferable to the 2015 Rule; however, a clear, comprehensive regulation that encompasses the Supreme Court’s interpretations is preferable to the pre- existing regulatory regime restored by the 2019 Rule. The language of the 2019 Rule regulatory text leaves substantially more room for discretion and case-by- case variation than does this final rule, particularly paragraph (a)(3) in the 2019 Rule, which claims jurisdiction over waters that are used by interstate or foreign travelers for recreational or other purposes, with no reference to navigable waters. Following the Supreme Court’s opinions on the definition of ‘‘waters of the United States,’’ particularly SWANCC and Rapanos, the 2019 Rule must be implemented taking into account the Court’s holdings and agency guidance interpreting those cases. In the decade since the Rapanos decision, the agencies and the public have become familiar with this multi-layered interpretive approach, which is in part why the agencies finalized the 2019 Rule to maintain the pre-existing regime during the process of developing and considering public comments on this final rule. The regulatory definition of ‘‘waters of the United States’’ set forth in this final rule reflects Supreme Court case law and clearly establishes the scope of jurisdictional waters under the CWA. It provides greater regulatory predictability than the regulatory regime restored by the 2019 Rule. In sum, as compared with both the 2015 Rule and the regulatory regime restored by the 2019 Rule, this final rule more appropriately reflects the scope of the agencies’ authority under the statute and the Constitution; respects the vital role of the States and Tribes in managing their land and water resources; and addresses the need of the public for predictable, more easily implementable regulations that aim to accomplish the objective of the Act, ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. 1251(a). G. Existing Guidance In several places in the preamble to the proposed rule, the agencies solicited comment on whether they should revoke the 2003 SWANCC Guidance or the 2008 Rapanos Guidance if the agencies were to finalize the proposal. 84 FR 4165, 4167. These guidance documents were drafted to inform the agencies’ implementation of the 1986 and 1988 regulations, which the 2019 Rule recodified, in a manner consistent with the Supreme Court’s decisions in SWANCC and Rapanos. Some commenters thought that the 2003 and 2008 guidance documents provided helpful information and assistance to the public in understanding how the agencies might implement a definition of ‘‘waters of the United States.’’ Other commenters thought that the documents should be rescinded to avoid confusion during implementation of this final rule, particularly because the agencies have totally restructured the regulatory definitions. The agencies considered these comments and conclude that, when this final rule becomes effective, these and other related agency guidance documents, memoranda, and materials will be rendered inoperative because they will no longer be necessary or material, and they may in fact create confusion as the agencies implement this final rule. The agencies can develop new guidance to facilitate implementation of this final rule should questions arise, if any, regarding the application of the rule to specific circumstances.34 VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22273 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations the effective date of this rule as a result of litigation, the agencies intend to use the guidance documents relevant to those regulations, including the 2003 SWANCC Guidance and 2008 Rapanos Guidance, if necessary to inform implementation of those regulations. III. Definition of ‘‘Waters of the United States’’ The following is a summary of the key elements and each substantive provision of this final rule. Each subsection describes what the agencies are finalizing, why the agencies are finalizing the regulatory text, and how the agencies plan to implement the final rule. To assist the reader, the longer subsections have internal headings. In this final rule the agencies interpret the term ‘‘the waters’’ in the phrase ‘‘the waters of the United States’’ to encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters. As the plurality decision in Rapanos notes, the term ‘‘the waters’’ is most commonly understood to refer to ‘‘streams and bodies forming geographical features such as oceans, rivers, lakes,’’ or ‘‘the flowing or moving masses, as of waves or floods, making up such streams or bodies.’’ 547 U.S. at 732 (citing Webster’s New International Dictionary 2882 (2d ed. 1954)); see also Riverside Bayview, 474 U.S. at 131 (characterizing ‘‘waters of the United States’’ as including ‘‘rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’’’); see also 118 Cong. Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie) (referring to ‘‘navigable waters’’ as ‘‘water bodies’’). According to the Rapanos plurality, however, the ordinary meaning of the term ‘‘waters’’ does not include areas that are dry most of the year, and which may occasionally contain ‘‘transitory puddles or ephemeral flows of water.’’ 547 U.S. at 733. The agencies received considerable public comments on the scope of the proposed definition of ‘‘waters of the United States.’’ Some commenters stated that the proposed rule would include more waters and wetlands than appropriate under a strict reading of Justice Scalia’s plurality opinion in Rapanos and is therefore inconsistent with Executive Order 13778. Some commenters agreed with the proposed rule, stating that it struck an appropriate balance of asserting jurisdiction over waters that should be regulated by the Federal government, provided clear direction for the regulated community, and respected State and tribal authority over their own land and water resources. Some commenters stated that the proposal failed to include ecologically important waters and wetlands and failed to give due weight to Justice Kennedy’s concurring opinion in Rapanos. Other commenters stated that the proposed rule and supporting rationale were based exclusively on the CWA section 101(b) policy to ensure that States maintain primary authority over land and water resources and failed to give due weight to the objective in CWA section 101(a) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The agencies disagree with commenters’ suggestion that the Executive Order requires the agencies to rely exclusively on Justice Scalia’s opinion in Rapanos. The Executive Order requires the agencies to consider that opinion, which is what the agencies have done here. The agencies also disagree with commenters’ suggestion that the proposal failed to incorporate principles from Justice Kennedy’s opinion, and further disagree with commenters’ suggestion that the agencies failed to consider the objective of section 101(a) in determining where to draw the line of federal jurisdiction. However, the agencies considered these and other public comments, and have made modifications in the final rule to better incorporate common principles of the Rapanos plurality and concurring opinions, and to strike a careful balance between the clear directive from Congress to ensure that States maintain primary authority over land and water resources, and the importance of maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers. The final definition of ‘‘waters of the United States’’ aligns with the intent of Congress to interpret the term ‘‘navigable waters’’ beyond just commercially navigable-in-fact waters. This definition recognizes Congress’ intent ‘‘to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term,’’ Riverside Bayview, 474 U.S. at 133, but at the same time acknowledges that ‘‘[t]he grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.’’ SWANCC, 531 U.S. at 173. The definition also recognizes the constitutional underpinning of the CWA, which was Congress’ exercise of ‘‘its commerce power over navigation.’’ Id. at 168 n.3. This final rule establishes categorical bright lines to improve clarity and predictability for regulators and the regulated community by defining ‘‘waters of the United States’’ to include the following four categories: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). The final rule eliminates the case-specific application of the agencies’ previous interpretation of Justice Kennedy’s significant nexus test in the Rapanos Guidance, and instead establishes clear categories of jurisdictional waters that adhere to the basic principles articulated in the Riverside Bayview, SWANCC, and Rapanos decisions while respecting the overall structure and function of the CWA. A. Key Terms and Concepts Each of the four categories of waters of the United States established by this final rule, as well as the waters that fall beyond CWA jurisdiction, is discussed in detail in Sections III.B through III.H below. Many of the operative terms used in the final rule are defined in paragraph (c), and their applicability is discussed at length throughout those subsections. This subsection summarizes a few key terms and concepts that help inform the overall implementation of the jurisdictional categories established by paragraph (a) and the non-jurisdictional waters established by paragraph (b), and are highlighted here for ease of reference and additional clarity. One such term is ‘‘typical year.’’ As discussed above, the meaning of the phrase ‘‘waters of the United States’’ has been mired in confusion for decades. This is in part because courts, regulators, the regulated community, and members of the public have lacked clear guidance as to how far up the watershed federal jurisdiction extends, and what connection is required for waters to be considered part of the regulated tributary system to traditional navigable waters and the territorial seas. The last two Supreme Court cases on point—SWANCC and Rapanos— provided clear instruction to the agencies that their prior interpretations had exceeded their jurisdictional authority under the CWA. The phrase ‘‘typical year’’ as used in the final rule and throughout this notice is intended to provide a predictable framework in VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22274 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations which to establish federal jurisdiction over relatively permanent waters that contribute surface water flow to waters identified in paragraph (a)(1) (generally referred to as ‘‘paragraph (a)(1) waters’’ or ‘‘a paragraph (a)(1) water’’ in this notice), and wetlands adjacent to such waters. The term ‘‘typical year’’ is summarized in Section III.A.1 and is further discussed throughout the notice. The agencies are also defining the terms ‘‘perennial,’’ ‘‘intermittent,’’ and ‘‘ephemeral’’ in the final rule, adding clarity and certainty for how these frequently used terms apply in the ‘‘waters of the United States’’ context. The agencies have used these terms to assess jurisdictional status under the CWA, but until this final rule have never defined them in the regulatory text. The terms have specific meaning in the scientific community, but when used in legal settings, common parlance often converges with scientific meaning, creating opportunities for misunderstanding. For example, while the Rapanos plurality stated that the term ‘‘waters of the United States’’ does not include ‘‘ordinarily dry channels through which water occasionally or intermittently flows,’’ 547 U.S. at 733 (emphasis added), it also stated the phrase does ‘‘not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.’’). Id. at 732 n.5 (emphasis in original). ‘‘Seasonal rivers’’—which the plurality would not categorically exclude—are known among scientists as ‘‘intermittent streams’’—which the plurality stated it would exclude. The plurality also appears to confuse the scientific understanding of the terms ‘‘‘intermittent’ and ‘ephemeral’ streams,’’ conflating them to mean ‘‘streams whose flow is . . . ‘existing only, or no longer than, a day[.]’’’ Id. Indeed, this description more accurately captures the hydrological definition of ‘‘ephemeral streams’’ which only flow during or in immediate response to rainfall. By contrast, ‘‘intermittent streams’’ typically flow for a more continuous period like the ‘‘seasonal rivers’’ the plurality describes. Because the definition of ‘‘tributary’’ specifically uses and relies on the terms ‘‘perennial’’ and ‘‘intermittent,’’ but not ‘‘ephemeral,’’ the agencies are clearly defining these terms in the final rule. These terms are summarized below in Section III.A.2 and are further discussed throughout the preamble. Another challenging issue that has confounded the meaning of ‘‘waters of the United States’’ for years is what types of natural or artificial features potentially sever jurisdiction between the upstream and downstream portions of a waterway. For example, if the waters of a perennial headwater stream are diverted to another basin for consumptive use and the downstream reach runs dry for major portions of a year, or the flow of a stream disappears into the desert floor before reaching a traditional navigable water, questions are frequently raised regarding the jurisdictional status of those waters. Subsection III.A.3 below discusses the ‘‘breaks’’ topic in detail and how the agencies have addressed the various artificial and natural features that either maintain or sever jurisdiction under the final rule. 1. Typical Year In this final rule, the agencies use the term ‘‘typical year’’ to help establish the surface water connection between a relatively permanent body of water and traditional navigable waters, and between certain wetlands and other jurisdictional waters, that is sufficient to warrant federal jurisdiction. ‘‘Typical year’’ is defined in the final rule to mean when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period. Under this final definition, a typical year would generally not include times of drought or extreme flooding. In other words, the purpose of the term is to ensure that flow characteristics are not assessed under conditions that are too wet or are too dry. As discussed in Section III.G.2, climatic conditions, including flow or flooding, that may occur under ‘‘typical year’’ conditions do not necessarily occur in every calendar year. The agencies proposed to use the term ‘‘typical year’’ to mean within the normal range of precipitation over a rolling thirty-year period for a particular geographic area; that is, during times when it is not too wet and not too dry. However, some commenters on the proposed rule expressed confusion about the proposed ‘‘typical year’’ definition, including how it is calculated and what timeframe it represents. Commenters also expressed concern that the proposed definition included only precipitation as a driver of streamflow classification. Other commenters supported the typical year concept as proposed. In response to these comments, the agencies have modified the definition of ‘‘typical year’’ to expressly include other climatic variables in addition to precipitation and additional description of the normal periodic range, signaling that such range need not be based on a calendar year. The agencies believe the revised definition more appropriately reflects what the agencies intended to measure, which is, simply put, the characteristics of a waterbody at times that are not too wet and not too dry. To determine whether water features are being assessed during normal precipitation conditions, the agencies currently use data from the National Oceanic and Atmospheric Administration’s (NOAA) Global Historic Climatology Network, which integrates climate data from over 20 sources. The agencies evaluate normal precipitation conditions based on the three 30-day periods preceding the observation date. For each period, a weighted condition value is assigned by determining whether the 30-day precipitation total falls within, above, or below the 70th and 30th percentiles for totals from the same date range over the preceding 30 years. The agencies make a determination of ‘‘normal,’’ ‘‘wetter than normal,’’ or ‘‘drier than normal’’ based on the condition value sum. While the agencies will generally use this method to implement this final rule, the agencies also recognize there may be other accurate and reliable measurements of normal precipitation conditions and will make adjustments to the approach as is scientifically warranted. The agencies may also consider alternative methods that are developed and appropriately validated, including different statistical percentiles, evaluation periods, or weighting approaches for condition values. Some commenters on the proposed rule were concerned that a 30-year period may be too long or too short of a record, or that rolling 30-year climate percentiles would be difficult to calculate. The agencies have concluded that a rolling 30-year period would account for variability to provide a reliable indicator of the climate in a given geographic area without being confounded by a year or two of unusual climate data. A standard timeframe is necessary to ensure consistent application across the country, and 30 years is the most common and recognized timeframe utilized in other government climatic data programs (e.g., NOAA’s National Climatic Data Center climate normals, which are based on World Meteorological Organization requirements). Nearly a century ago, the International Meteorological Organization, now known as the World Metrological Organization, instructed member nations to calculate climate normals using 30-year periods, beginning with 1901 to 1930 (see https://www.ncdc.noaa.gov/news/ VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22275 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 35 See, e.g., 82 FR 2006 (Jan. 6, 2017) (Corps nationwide permit program); National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. https://doi.org/ 10.17226/10327. defining-climate-normals-new-ways). Recognizing that precipitation and temperature change over time, the agencies have determined that a rolling 30-year record is necessary to ensure that changing conditions are captured by the calculation. The agencies have considered other alternative time periods and are maintaining the well- established 30-year period. The agencies proposed that the geographic area be on a watershed-scale basis to ensure specific climatic data are representative of the landscape in relation to the feature under consideration for meeting the ‘‘tributary’’ definition and sought comment on the appropriate watershed scale. Some commenters on the proposed rule suggested constraining precipitation data sources to the smallest practicable watershed scale (e.g., a USGS HUC–12 scale). However, other commenters noted that 30 years of data may not always be available at that scale, and other considerations such as distance or ecoregion are also important for identifying appropriate climatic data. In response to these comments, the agencies have determined that specifying a particular watershed size or Hydrologic Unit Code (HUC) could preclude the use of the best available data sources, but that watershed boundaries should be a consideration when selecting climate records. Other considerations should include data availability, topography, and distance of climatic data collection in relation to the aquatic resource location. The agencies recognize that precipitation data may not be the only appropriate indicator for determining ‘‘typical year,’’ as was noted by many commenters on the proposed rule. Although the agencies will generally use the methodology described in this notice for determining normal precipitation conditions, the agencies will consider and use the best available data and information, which provides the most accurate and reliable representative information for the aquatic resource in question, to determine ‘‘typical year.’’ For instance, determinations of ‘‘typical year’’ based on precipitation totals may conflict with other sources of information such as drought indices, which account for other hydrologic factors like evapotranspiration and water storage. The agencies currently use professional judgment and a weight of evidence approach as they consider precipitation normalcy along with other available data sources. These data sources include, but are not limited to, the Web- based Water-Budget Interactive Modeling Program (WebWIMP) for approximate dates of wet and dry seasons for any terrestrial location based on average monthly precipitation and estimated evapotranspiration (http:// climate.geog.udel.edu/∼wimp/); Climate Analysis for Wetlands Tables (known as WETS tables, or similar tools, as the WETS tables are currently in a fixed 30- year timeframe), which are provided by the NRCS National Water and Climate Center (https://www.wcc.nrcs.usda.gov/ climate/wets_doc.html) and were calculated from long-term (30-year) weather records gathered at National Weather Service meteorological stations; and drought indices, such as the Palmer Drought Severity Index (PDSI) (Sprecher and Warne 2000), where time-series plots of PDSI values by month or year are available from the National Climatic Data Center (https:// www.ncdc.noaa.gov/temp-and-precip/ drought/historical-palmers/psi/201811- 201910 or https:// www.cpc.ncep.noaa.gov/products/ monitoring_and_data/drought.shtml). 2. Perennial, Intermittent, and Ephemeral Though ‘‘perennial,’’ ‘‘intermittent,’’ and ‘‘ephemeral’’ are commonly used scientific terms, the agencies are including definitions of these terms in the final rule to ensure that the regulation is clear. In this final rule, the agencies define the term ‘‘perennial’’ to mean surface water flowing continuously year-round. The term ‘‘intermittent’’ in the final rule means surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts). The phrase ‘‘certain times of the year’’ is intended to include extended periods of predictable, continuous surface flow occurring in the same geographic feature year after year. Continuous surface water flow during certain times of the year may occur seasonally such as in the spring when evapotranspiration is low and the groundwater table is elevated. Under these conditions, the groundwater table intersects the channel bed and groundwater provides continuous baseflow for weeks or months at a time even when it is not raining or has not very recently rained. Melting snowpack can be the sole or primary source of perennial or intermittent flow in a tributary. The term ‘‘snowpack’’ is defined as ‘‘layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (e.g., in northern climes or mountainous regions).’’ Perennial or intermittent flow in certain mountain streams, for example, may result primarily from melting snowpack, not from groundwater contributions to the channel. The term ‘‘ephemeral’’ in the final rule means surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall. With these definitions, the agencies distinguish ephemeral flow resulting from a snow fall event from sustained intermittent flow resulting from melting snowpack that is continuous, such as for weeks or months at a time. Some commenters requested that the final rule require that groundwater must be the source for perennial and intermittent flow in tributaries. The agencies recognize that groundwater input is an element of most scientific definitions of perennial and intermittent flow,35 but have decided not to mandate groundwater input as part of the definition of ‘‘perennial’’ or ‘‘intermittent’’ in the final rule. As a threshold matter, the agencies believe that such an approach would too narrowly limit CWA jurisdiction over waters that provide continuous or intermittent and predictable flow to traditional navigable waters in a typical year. For example, many headwater streams in mountainous regions flow through channels incised in bedrock with no groundwater interface with the bed of the stream. These streams instead are fed by glacial or high elevation snowpack melt. The same scenario may also exist in northern climes, where spring flows could be fed almost exclusively through melting snowpack absent elevated groundwater tables. Mandating a groundwater interface and contribution of flow could also be challenging to implement, as identifying whether the channel bed intersects the groundwater table may be difficult to accomplish in the field, gathering the relevant data could be time consuming, and implementing a source water-based definition could require new tools and training of field staff and the regulated public. The requirement for a groundwater flow source could also render effluent-dependent streams non- jurisdictional. The agencies do not interpret the text or legislative history of the CWA or Supreme Court guidance to mandate groundwater input as a condition precedent for asserting jurisdiction over tributaries to traditional navigable waters. A few commenters asked for clarification to better distinguish VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22276 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 36 See e.g., Baillie, M.N., J.F. Hogan, B. Ekwurzel, A.K. Wahi, and C.J. Eastoe. 2007. Quantifying water sources to a semiarid riparian ecosystem, San Pedro River, Arizona, J. Geophysical Res., 112, GO3S02, doi: 10.1029/2006JG000263. Ballie et al. (2007) found that locally recharged monsoon floodwater is one of the dominant water sources in the main stem of the spatially intermittent San Pedro River in Arizona. The authors also define ‘‘monsoon storms’’ as ‘‘short, intense rainstorms that generate significant amounts of flooding and ephemeral flow (i.e., flow in ephemeral channels on the basin floor) and represent, on average, the bulk of summer moisture.’’ (Emphasis added). See also Connectivity Report at B–39 (‘‘Monsoon-generated, short- duration runoff dominates the San Pedro watershed. . . Most perennial and intermittent rivers in the Southwest are groundwater dependent, flowing primarily in a baseflow regime and supported by discharge from a connected regional or alluvial aquifer or both.... [P]art of the baseflow is often sustained or augmented by slow drainage of a shallow alluvial aquifer from past flooding.’’) between flow ‘‘in direct response to precipitation’’ versus ‘‘more than in direct response to precipitation,’’ as well as further clarification on the distinction between ephemeral and intermittent flow classifications in general. For example, they requested clarification on whether streams that flow continuously during a rainy season (e.g., monsoon-driven streams in the arid West) are considered intermittent. The use of the term ‘‘direct’’ by the agencies in the proposed rule and maintained in this final rule is intended to distinguish between flow solely caused by individual precipitation events (including multiple, individual back-to-back storms), and continuous flow resulting, for example, from weeks- or months-long accumulation of precipitation in the form of snowpack that melts slowly over time or an elevated groundwater table that provides baseflow to the channel bed. Ephemeral flow may occur simply because it is raining or has very recently rained or it has recently snowed and the snow has melted. For example, ephemeral flow could be the result of a small, brief storm event, one long storm event producing rainfall for several days without pause, or several back-to-back storms. Continuous flow occurring more than in direct response to precipitation could include ‘‘seasonal’’ flow, such as when snowpack melts or when groundwater is elevated and provides baseflow to the channel bed. Streamflow that occurs during the monsoon season in certain parts of the country (typically June through September in the arid West) may be ephemeral or intermittent, with the distinction made according to the definition of each term in the final rule. For example, a stream in the arid West is ephemeral if it flows only in direct response to rainfall, even if the flow may appear relatively continuous as a result of multiple, individual storms during the monsoon season. On the other hand, when monsoon floodwaters locally recharge the riparian aquifer through bank infiltration and supply sustained baseflow to streams in the arid West when it is not raining or has not recently rained, such streams meet the rule’s definition of ‘‘intermittent’’ if they flow seasonally, for example, or ‘‘perennial’’ if they flow continuously year-round.36 Some commenters requested clarity on the specific geographic regions where ‘‘snowpack’’ as defined under the proposed rule would occur. Other commenters requested that the agencies clarify how melting snowpack is distinguished from melting snowfall and clearly articulate the amount of snow needed to meet the definition of ‘‘snowpack,’’ as well as provide clarity on what ‘‘extended periods’’ of time means. They also requested clarification on the sources of information (e.g., from NOAA, NRCS, or another source) that can be used to identify ‘‘snowpack.’’ ‘‘Extended periods of time’’ refers to more than merely a single snowfall event or periodic events with repeated snowmelts after each occurrence, but rather recurring snow events which result in an accumulation of multiple layers of snow in certain geographic regions, which may include, for example, parts of North Dakota or Alaska, or at high elevation, to potentially include the Rocky, Sierra Nevada, or Cascade mountains. A foot of new snow fall on the high plains of southern Wyoming in May will typically melt quickly under the intense sun of subsequent days, while a foot of snow in northern Wisconsin in January will likely contribute to seasonal snowpack that may not melt until spring thaw. The first scenario is more likely to cause ephemeral flow, the second is more likely to cause intermittent flow. The agencies could consider any data sources that provide an accurate estimation of ‘‘snowpack’’ in identifying that feature. The agencies are not limiting the identification of snowpack to one data source, such as those provided by NOAA or NRCS, although those are reliable existing sources to find information on snowpack. The Bureau of Reclamation and several western States depend on accurate snow fall and accumulation data to project water availability for consumptive needs and the allocation of water rights. Analyzing the location and seasonality of snowpack is a common, well understood practice in other contexts and will not pose implementation challenges to the agencies under the final rule as they draw on the expertise of other Federal and State partners. In certain parts of the country and during certain times of the year, snowpack may have a more significant influence on flow classifications than rainfall. Sources of information on ‘‘snowpack’’ can be found in the NOAA national snow analyses maps (https:// www.nohrsc.noaa.gov/nsa/), in NRCS sources (https:// www.wcc.nrcs.usda.gov/snow/), or by using hydrographs of subject locations as a potential guide to alert the regulated public and regulators as to which regions of the country have to consider snowpack scenarios. In these regions, for example, a hydrograph could indicate a large increase in discharge volume due to the late spring/ early summer thaws of melting snowpack. These are indicators of a regular, predictable, seasonal occurrence of flow. The large water contribution source for those northern geographic regions which do not have significant elevation changes, but which do have a consistent, predictable snowfall that accumulates on the ground for extended periods of time, are covered in this rule’s definition of ‘‘snowpack’’ in paragraph (c)(10), in addition to mountainous regions with snowpack. 3. Breaks Under the proposed rule, an artificial or natural ephemeral feature (e.g., an ordinarily dry channel only flowing during or in immediate response to precipitation) occurring in a typical year at any point along a tributary network would have severed jurisdiction upstream of the ‘‘break’’ because the waterbody would not convey surface water to a paragraph (a)(1) water year- round or continuously for extended periods of time. 84 FR 4173–74. To be jurisdictional, lakes and ponds that are not paragraph (a)(1) waters would have needed to maintain perennial or intermittent flow to a paragraph (a)(1) water in a typical year or be flooded by a jurisdictional water in a typical year. Id. at 4182. In other words, to be jurisdictional, the proposed rule would have required tributaries and most lakes and ponds to maintain a perennial or intermittent surface water connection all the way to a downstream paragraph (a)(1) water. The agencies received public comments indicating that this approach could affect the jurisdictional status of many waters, particularly in the arid West; that it could inadvertently subject otherwise exempt water transfers to CWA section 402 permitting; and it could create VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22277 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations implementation challenges. The agencies received other comments supporting the proposed approach. As further discussed below, the final rule contains some important changes to address these concerns, which are intended to better incorporate common principles from the Rapanos plurality and concurring opinions, and to strike a better balance between the objective and policy in CWA sections 101(a) and 101(b), respectively. Changes made in the final rule, however, remain faithful to the overall text, structure, and legislative history of the CWA and the legal principles outlined in Section II.E. Many of the changes were designed to address questions and concerns regarding under what circumstances a natural or artificial feature severed upstream jurisdiction, as discussed in detail in this subsection and as further explained throughout Section III. The Supreme Court has not spoken directly to the question of whether a non-jurisdictional ephemeral break along or downstream of an otherwise jurisdictional tributary, lake, pond, or impoundment would sever jurisdiction of upstream waters. As described in Section II.E, Supreme Court precedent provides some insight regarding CWA jurisdiction of relatively permanent bodies of water, including tributaries, lakes, and ponds, and their connection to traditional navigable waters, but it does not provide comprehensive guidance. For example, the Rapanos plurality describes a ‘‘water of the United States’’ as ‘‘a relatively permanent body of water connected to traditional interstate navigable waters[.]’’ Rapanos, 547 U.S. at 742 (emphasis added). Regarding the connection between a water in question and downstream navigable waters, Justice Kennedy noted that ‘‘in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water . . . and a navigable water may be so close, or potentially so close, that the Corps may deem the water . . . a ‘navigable water’ under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection.’’ Id. at. 767. Justice Kennedy also stated that ‘‘mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 784–85. Although the Rapanos plurality opinion did not specify what would constitute a sufficient connection between relatively permanent waters and downstream traditional navigable waters, it did signal types of connections that are likely insufficient to maintain jurisdiction when read in context with the principles articulated throughout the balance of the opinion. For instance, the plurality characterized an ‘‘expansive definition of ‘tributaries’’’ as including ‘‘dry arroyos connected to remote waters through the flow of groundwater over ‘centuries,’’’ id. at 725–26 (internal citations omitted), and described federal control over ‘‘irrigation ditches and drains that intermittently connect to covered waters’’ as ‘‘sweeping assertions of jurisdiction.’’ Id. at 726–27. In addition to ‘‘tributaries,’’ the plurality noted with disapproval that the Corps and lower courts had ‘‘define[d] ‘adjacent’ wetlands broadly’’ to include wetlands ‘‘hydrologically connected’’ ‘‘to covered waters’’ ‘‘‘through directional sheet flow during storm events,’’’ and wetlands ‘‘connected to the navigable water by flooding, on average, once every 100 years[.]’’ Id. at 728. The agencies considered these observations in developing the final rule but recognize that the Supreme Court has not spoken directly to every aspect of the agencies’ existing regulations or every fact pattern that may raise questions of federal jurisdiction. The final rule therefore is also based on the text, structure, and legislative history of the CWA, the reasoned policy choices of the executive branch agencies authorized by Congress to implement the Act, and the agencies’ technical and scientific expertise administering the CWA over nearly five decades. The proposed rule, which would have severed jurisdiction upstream of any ephemeral feature, reflected a reasonable interpretation of the CWA and incorporated relevant Supreme Court guidance. However, upon further consideration, the agencies conclude that the proposed rule’s treatment of ephemeral features would have severed jurisdiction for certain relatively permanent bodies of water that are regularly ‘‘connected to’’ traditional navigable waters via channelized surface water flow, allowing such waters to connect and become indistinguishable when flowing. Some ephemeral reaches between upstream and downstream relatively permanent (i.e., perennial or intermittent) waters convey surface water from the upstream water to the downstream covered water during a typical year. These reaches allow upstream relatively permanent jurisdictional waters to have a surface water connection to downstream jurisdictional waters in a typical year when there is sufficient water in the system. In contrast, other ephemeral streams, including those at the very headwaters of a channel network, do not connect relatively permanent jurisdictional waters to downstream jurisdictional waters; rather, they are merely ‘‘channels that periodically provide drainage for rainfall.’’ Rapanos, 547 U.S at 739 (Scalia, J. plurality). The agencies conclude in this final rule that certain ephemeral features between upstream relatively permanent jurisdictional waters and downstream jurisdictional waters do not sever jurisdiction upstream so long as such features satisfy the conditions described further below. Like the proposed treatment of ephemeral features, the final rule is based on an equally reasonable interpretation of the CWA and Supreme Court precedent, and appropriately balances the plurality and concurring opinions in Rapanos and the objective of the Act and the policy of Congress set forth in CWA sections 101(a) and 101(b). In the final rule, certain ephemeral features do not sever jurisdiction of an upstream relatively permanent jurisdictional water so long as they provide a surface water connection to a downstream jurisdictional water in a typical year. Specifically, the final rule provides that a tributary does not lose its jurisdictional status if it contributes surface water flow in a typical year to a downstream jurisdictional water through a channelized non- jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. See paragraph (c)(12). The final rule applies the same basic principles to the category of lakes, ponds, and impoundments of jurisdictional waters. See paragraph (c)(6). A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through artificial features such as culverts and spillways. The agencies conclude that such features do not necessarily sever jurisdiction of upstream waters. However, if an artificial feature does not allow for the contribution of surface water flow to a downstream jurisdictional water in a typical year, it severs jurisdiction upstream of the artificial feature. The final rule treats natural features such as debris piles and boulder fields the same way that it treats the artificial features described above. The changes made in the final rule address concerns raised by commenters about features that would sever the jurisdiction of upstream portions of the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22278 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations tributary network, including relatively permanent upstream waters that contribute surface water flow to downstream waters when enough water is in the system. It also addresses concerns raised by water management interests that suggested the proposed rule could have inadvertently undermined the NPDES permitting exemption authorized by the EPA’s Water Transfers Rule, 73 FR 33697 (June 13, 2008). That rule does not require NDPES permits for water transfers between waters of the United States because they do not result in the ‘‘addition’’ of a pollutant. Id. at 33699. In many regions of the country, particularly the arid West, inter- and intra-basin water transfers may originate in perennial or intermittent waters that may be disconnected from downstream waters by ephemeral breaks. In many circumstances, those ephemeral breaks may be caused by water management systems, including through water transfers, water storage reservoirs, flood irrigation channels, and similar structures. Not all diversions will cause a downstream portion of an otherwise perennial or intermittent stream to become ephemeral in a typical year; however, the modifications made by the final rule to the categories of tributaries and of lakes, ponds, and impoundments of jurisdictional waters help address the concerns raised by commenters regarding the potential impact of the proposed rule on longstanding water management practices in this country. The agencies are cognizant of the importance of water management in the States and the explicit policy directives of Congress to recognize the authority of States to allocate and manage water resources within their respective jurisdictions. See 33 U.S.C. 1251(g), 1370. Under the final rule, ephemeral features and other excluded artificial and natural features are not jurisdictional and do not become jurisdictional even if they episodically convey surface water from upstream relatively permanent jurisdictional waters to downstream jurisdictional waters in a typical year, and thereby help maintain the jurisdictional status of the upstream waters. This approach incorporates the plurality’s requirement that jurisdictional waters be continuously present, fixed bodies of water and that dry channels, transitory puddles, and ephemeral flows be excluded from jurisdiction. 547 U.S. at 733–34; see also id. at 731 (‘‘[T]he CWA authorizes federal jurisdiction only over ‘waters.’ 33 U. S. C. 1362(7).’’). This approach also requires a regular and predictable surface water connection— one that occurs in a typical year—which addresses Justice Kennedy’s concern that speculative and insubstantial connections may not be sufficient to establish jurisdiction. Id. at 784–86. The types of connections that maintain jurisdiction between relatively permanent bodies of water are described more fully below. The agencies conclude that tributaries, lakes, ponds, and impoundments of jurisdictional waters that are relatively permanent flowing or standing waterbodies upstream of certain excluded features are jurisdictional so long as the non- jurisdictional feature maintains a channelized surface water connection to downstream jurisdictional waters in a typical year. Paragraph (b) of the final regulation identifies twelve categories of excluded features, but only those features that convey channelized surface flow between upstream relatively permanent waters and downstream jurisdictional waters in a typical year can maintain jurisdiction of the upstream waters. For example, non- jurisdictional ditches could be capable of conveying channelized surface water flow between upstream relatively permanent jurisdictional waters and downstream jurisdictional waters in a typical year. Similarly, a surface water connection may occur through an ephemeral channelized conveyance and may result in the mixing of upstream and downstream relatively permanent waters following sufficient precipitation, but in all cases such a connection must occur in a typical year. The final rule also provides that other types of artificial or natural features, such as dams or boulder fields, may maintain jurisdiction so long as they convey surface water flow from an upstream tributary, lake, pond or impoundment of a jurisdictional water to a downstream jurisdictional water in a typical year. The agencies have concluded that water flowing through features such as dams or boulder fields can sustain a regular and predictable surface connection between upstream and downstream waters and therefore can maintain jurisdiction between such waters. By contrast, diffuse stormwater runoff and directional sheet flow by their very nature do not convey channelized surface flow and do not provide regular and predictable surface water connections between upstream relatively permanent bodies of water and downstream jurisdictional waters. Unchannelized surface flow, such as diffuse runoff or overland sheet flow, lacks an adequate physical indicator of regular surface flow and can be ubiquitous across the landscape, occurring over parking lots and lawns, for example. As Justice Kennedy notes in Rapanos, ‘‘mere hydrologic connection should not suffice in all cases[,]’’ 547 U.S. at 784, and the agencies agree with the Rapanos plurality that ‘‘[t]he plain language of the statute simply does not authorize [a] ‘Land is Waters’ approach to federal jurisdiction.’’ Id. at 734. The agencies ‘‘must necessarily choose some point at which water ends and land begins[,]’’ Riverside Bayview, 474 U.S. at 132, and conclude that diffuse runoff and overland sheet flow connections are ‘‘too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Rapanos, 547 U.S. at 784– 85 (Kennedy, J. concurring in the judgment). In this final rule, the agencies therefore conclude that surface water flowing as unchannelized runoff or sheet flow over land cannot sustain a regular or predictable surface water connection between upstream and downstream waters and therefore cannot maintain jurisdiction between such waters. By contrast, channelized ephemeral features may indicate that surface water predictably moves from upstream relatively permanent waters to downstream jurisdictional waters, such that they may be capable of providing a surface water connection sufficient to warrant federal regulation over the upstream water. As noted above, a non- jurisdictional feature remains non- jurisdictional even if it provides a channelized surface water connection between jurisdictional waters in a typical year. Like diffuse overland flow, the agencies also conclude that relatively permanent bodies of water that are connected to downstream jurisdictional waters only via groundwater are not jurisdictional and are more appropriately regulated by the States and Tribes under their sovereign authorities. The agencies have long interpreted the CWA as not authorizing jurisdiction over groundwater and have historically excluded groundwater from the definition of ‘‘waters of the United States.’’ The agencies are retaining that longstanding principle in this final rule. See paragraph (b)(2). If groundwater is not jurisdictional, it also makes practical sense that surface water features connected only via groundwater likewise are not jurisdictional. See Rapanos, 547 U.S. at 725–26 (Scalia, J., plurality) (identifying groundwater connections as an example of the expansive interpretation of VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22279 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 37 See Connectivity Report at A–1, defining ‘‘aquifer’’ as ‘‘[a] geologic formation (e.g., soil, rock, alluvium) with permeable materials partially or fully saturated with ground water that yields ground water to a well, spring, or stream.’’ (emphasis added). tributaries under the Act). The term ‘‘navigable’’ as used in the statute must be given some meaning, see SWANCC, 531 U.S. at 172, and regulating surface waters with no surface water connection to traditionally navigable waters stretches that meaning ‘‘beyond parody.’’ Rapanos, 547 U.S. at 734 (Scalia, J., plurality). There are, however, certain unique subsurface connections that could maintain jurisdiction as discussed below; the agencies recognize that there are some relatively permanent tributaries that are relocated below ground to allow reasonable development to occur. In urban areas, for example, it can be common for surface waters to be buried underground through an artificial tunnel system to facilitate urban development. See, e.g., Connectivity Report at 3–3. Examples include Jones Falls, which flows under Baltimore, Maryland, and daylights into the Baltimore’s Inner Harbor; Park River which flows under Hartford, Connecticut, and daylights into the Connecticut River; and Mill Creek, a tributary of Lake Erie, which is diverted underground beneath downtown Erie, Pennsylvania, and daylights into Presque Isle Bay. These underground tunnels and similar channelized subsurface features do not become groundwater, even though they flow under the surface of the ground for a period of time. These features do not break the jurisdictional status of upstream tributaries subject to the conditions of paragraph (c)(12). In some cases where such channels never return to the surface or otherwise do not contribute surface water flow to a paragraph (a)(1) water in a typical year, the upstream surface water features may not be jurisdictional under the final rule. In all cases, the underground or buried portion of a channel network is not jurisdictional under the final rule. By comparison, tributaries that are relocated through a ditch or similar artificial surface channel are jurisdictional under the final rule so long as they continue to meet the flow conditions of paragraph (c)(12), including through the relocated portion. In very limited circumstances, a tributary can naturally, temporarily flow underground as a channelized river or stream, maintaining the same or very nearly the same flow volume underground and at the downstream point where it returns to the surface. These natural systems are commonly referred to as subterranean rivers or streams and can occur as a result of unique geologic formations, such as sink holes and lava tubes. Examples include the Popo Agie River in Wyoming, which becomes subterranean and daylights about a quarter of a mile downstream; the Lost River in Indiana, which flows underground for eight miles from where it disappears, to where it rises at two places to flow aboveground again; and formations like the St. Marks and Santa Fe Rivers in Florida, which flow into large sinkholes and reappear a little over one-half mile and three miles downstream, respectively. The agencies do not consider subterranean rivers to be groundwater, even though they flow under the surface of the ground for what is generally a short period of time through subterranean natural channels. Although it has never been promulgated in regulatory text, the agencies have historically treated these subterranean flowing connections as not severing jurisdiction over the upstream surface channel, and the Corps has developed expertise in performing field verifications for these unique waters. The final rule does not change this longstanding practice and for the first time provides certainty and transparency regarding the agencies’ approach for making jurisdictional determinations. The agencies have added the phrase ‘‘subterranean river’’ to paragraph (c)(12) to clarify that subterranean rivers, as compared to groundwater and other subsurface waters, may not break jurisdiction of upstream tributaries, including any jurisdictional lakes, ponds, and impoundments of jurisdictional waters that contribute surface water flow through these tributaries, depending on the factual circumstances. These subterranean rivers are distinguished in this final rule from other surface waters that, for example, may disappear underground and never daylight or daylight as an aquifer-fed spring or headwater of another river.37 The final rule does not maintain jurisdiction upstream of these other surface waters that may disappear underground and become part of the aquifer because the aquifer holds groundwater. The agencies have concluded that groundwater connections are an insufficient basis to assert jurisdiction over otherwise disconnected waters. In all cases, the underground portions of all waters are not jurisdictional under the final rule. The final rule also establishes that waters that do not contribute surface water to a downstream territorial sea or traditional navigable water in a typical year are not jurisdictional. These waters include completely losing streams (e.g., streams that experience a complete loss of surface water to a groundwater system) that do not reach traditional navigable waters in a typical year and waters that connect downstream only as a result of precipitation events that generally do not occur in a typical year (e.g., 10-, 25-, 50-, 100- or 500-year storms or floods). These waters do not provide a regular surface water connection to jurisdictional waters. Given that the term ‘‘navigable’’ must be given some effect, and that the Supreme Court has cautioned the agencies to avoid interpretations of the statute that raise significant constitutional questions, the agencies conclude that such waters are more properly regulated as land and water resources of the States and Tribes. See SWANCC, 531 U.S. at 173. As described in detail in Section III.G, adjacent wetlands are subject to a different jurisdictional test than tributaries, lakes, ponds, and impoundments of jurisdictional waters. According to the Rapanos plurality, for example, to be ‘‘waters of the United States,’’ a tributary, lake, pond, or impoundment must be ‘‘a relatively permanent body of water connected to traditional interstate navigable waters,’’ 547 U.S. at 742 (Scalia, J., plurality); to be ‘‘waters of the United States,’’ a wetland must have ‘‘a continuous surface connection’’ to such relatively permanent waters, ‘‘making it difficult to determine where the ‘water’ ends and the ‘wetland begins.’’ Id. The final rule defines ‘‘adjacent wetlands’’ to include all wetlands that abut—meaning to touch at least one point or side of—a territorial sea, traditional navigable water, tributary, lake, pond, or impoundment of a jurisdictional water. The final rule also includes other wetlands that are inseparably bound up with jurisdictional waters and relies on certain regular hydrologic surface connections to establish jurisdiction. For instance, the ‘‘adjacent wetlands’’ definition includes wetlands physically separated only by artificial structures such as dikes, or barriers, or divided by roads and similar structures so long as the structure allows for a direct hydrologic surface connection in a typical year: For example, through a culvert, flood or tide gate, pump, or similar feature. Jurisdiction of the wetland is severed when, in a typical year, an artificial feature does not allow for a direct hydrologic surface connection between the wetland and the jurisdictional water, or the wetland is not inundated by flooding from a territorial sea, traditional navigable VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22280 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 38 The agencies note that at oral argument in Rapanos, Chief Justice Roberts recognized this principle, stating that the 1986 definition ‘‘covers wetlands adjacent to waters other than waters that are themselves wetlands,’’ and ‘‘the Corps says we’re not going to reach the wetland that is adjacent to another wetland.’’ Transcript of Oral Argument at 45, 47, Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (Nos. 04–1034, 04–1384). The Chief Justice added that this ‘‘suggests that even the Corps recognized that at some point you’ve got to say stop because logically any drop of water anywhere is going to have some sort of connection through drainage. And they’re stopping there, and I wonder if we ought to take that same instinct that you see in [the wetlands definition] and apply it to your definition of tributary and say, at some point, the definition of tributary has to have an end. Otherwise, you’re going to go and reach too far, beyond what Congress reasonably intended.’’ Id. at 46. 39 U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook, available at https://usace.contentdm.oclc.org/utils/ getfile/collection/p16021coll11/id/2316. The agencies note that Appendix D is sometimes referred to as ‘‘Appendix D to the Rapanos Guidance’’ and was inadvertently referred to as such in the preamble to the proposed rule. The appendix actually resides as an attachment to the Jurisdictional Determination Form Instructional Guidebook that was published in 2007 concurrently with the 2007 Rapanos Guidance. The Rapanos Guidance was later undated in 2008, but Appendix D has remained unchanged since 2007. Appendix D notes (at page 1) that ‘‘EPA and the Corps are providing this guidance on determining whether a water is a ‘traditional navigable water’ for purposes of the Rapanos Guidance, the Clean Water Act (CWA), and the agencies’ CWA implementing regulations.’’ This sentence is what is often used to link the Rapanos Guidance to Appendix D, as the two were intended to operate in tandem, with other agency resources, to assist in guiding field implementation of CWA jurisdictional determinations. water, tributary, lake, pond, or impoundment of a jurisdictional water. See 547 U.S. at 742 (Scalia, J., plurality) (such wetlands ‘‘do not implicate the boundary-drawing problem of Riverside Bayview,’’ and thus do not have the ‘‘necessary connection’’ to jurisdictional waters that triggers CWA jurisdiction); see also id. at 747 (the plurality found ‘‘no support for the inclusion of physically unconnected wetlands as covered ‘waters’’’). Wetlands are jurisdictional if they are inundated by flooding from a territorial sea, traditional navigable water, tributary, lake, pond, or impoundment of a jurisdictional water in a typical year. The agencies conclude that these wetlands are inseparably bound up with their adjacent jurisdictional waters and are therefore jurisdictional. See Rapanos, 547 U.S. at 732 (Scalia, J., plurality) (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)) (recognizing floods as ‘‘making up such streams or bodies’’ of water); id. at 740 (recognizing the principle that wetlands that adjoin other jurisdictional waters are part of those waters for purposes of CWA jurisdiction). The final rule likewise asserts jurisdiction over lakes, ponds, and impoundments of jurisdictional waters that are inundated in a typical year by flooding from a territorial sea, traditional navigable water, tributary, or another lake, pond, or impoundment of a jurisdictional water. The final rule also provides that wetlands separated from jurisdictional waters only by a natural berm, bank, dune, or other similar natural feature are adjacent wetlands. These natural features are indicators of a sufficient hydrologic surface connection between the jurisdictional water and the wetland, and the agencies conclude that wetlands that are separated from jurisdictional waters only by such features are inseparably bound up with the adjacent jurisdictional waters and are therefore ‘‘part of those waters.’’ Id. Physically remote isolated wetlands (i.e., wetlands that do not abut, are separated by more than a natural berm from, are not inundated by flooding in a typical year from, and do not have a direct hydrologic surface connection in a typical year to a jurisdictional non- wetland water) are not adjacent wetlands under the final rule. For example, impoundments that are formerly adjacent wetlands that are physically disconnected from other jurisdictional waters in a typical year are not jurisdictional under the final rule. Additionally, in keeping with the agencies’ longstanding practice, the final rule maintains that wetlands can be jurisdictional only if they are adjacent to the territorial seas or a traditional navigable water, tributary, lake, pond or impoundment of a jurisdictional water. In 1986, the Corps defined ‘‘waters of the United States’’ as including ‘‘wetlands adjacent to [other jurisdictional] waters (other than waters that are themselves adjacent),’’ 51 FR 41250, meaning that wetlands obtain jurisdictional status under the CWA by virtue of their adjacency to traditional navigable waters, tributaries, and other actual waters, not by adjacency to other wetlands.38 In 2019, the agencies recodified this definition of ‘‘waters of the United States.’’ 84 FR 56626. Under this final rule, wetlands cannot be adjacent to other wetlands; they can only be adjacent to the territorial seas, a traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water. This holds true regardless of any hydrologic connection between a distinct wetland (i.e., a wetland delineated with boundaries distinct from those of an adjacent wetland) and an adjacent wetland when the distinct wetland is physically separated from the adjacent wetland by upland or other artificial or natural features. Because the agencies believe that the final rule’s definition of ‘‘adjacent wetlands’’ is clear on the jurisdictional linchpin for adjacency (by tethering jurisdiction to paragraph (a)(1) through (3) waters), the agencies are not including the ‘‘other than waters that are themselves adjacent’’ provision from the 2019 Rule (and earlier versions) in this final rule. B. Territorial Seas and Traditional Navigable Waters 1. What are the agencies finalizing? The agencies are making no substantive textual changes to the longstanding inclusion of traditional navigable waters and the territorial seas in the definition of ‘‘waters of the United States.’’ The agencies are finalizing this portion of the rule as proposed, with slight modifications discussed below. The final rule maintains these categories of ‘‘waters of the United States’’ but consolidates them into a single paragraph in the regulatory text. Many commenters supported the retention of the agencies’ longstanding foundational category of CWA jurisdiction, unchanged from previous regulatory text. They stated that the category was well understood, and its application guided by a developed body of case law. Most commenters supported integrating territorial seas into a single category with traditional navigable waters, agreeing with the agencies that it helped streamline the regulatory text, but some requested clarifications to maintain the distinction between the two types of waters. Some commenters requested that the agencies modify the test for traditional navigable waters by clarifying that such waters must be used to ‘‘transport commerce’’ rather than simply being ‘‘used’’ for or susceptible to ‘‘use’’ in interstate or foreign commerce, reflecting the terminology used by Congress in section 404(g) of the CWA. Responding to the agencies’ request for comment on Appendix D, several commenters requested that the agencies eliminate or modify Appendix D to the U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook (hereinafter, ‘‘Appendix D’’),39 stating that Appendix D is confusing, overstates the agencies’ authority under existing case law, and allows the agencies to regulate virtually any isolated water by misapplying the established judicial tests for navigability under the CWA. Other commenters suggested the agencies retain Appendix D as useful field guidance and to avoid VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22281 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations confusion associated with any changes in the agencies’ approach to traditional navigable water determinations. The agencies have considered all of the public comments received addressing these topics and are finalizing paragraph (a)(1) as proposed, with slight modifications to address questions regarding the inclusion of the territorial seas within a single category with traditional navigable waters. The agencies are not modifying the definition of ‘‘traditional navigable waters’’ as it has existed in regulatory text for decades. As discussed in Section II.G, when this final rule becomes effective, certain agency guidance documents, memoranda, and materials (e.g., the 2003 SWANCC Guidance and 2008 Rapanos Guidance) will be rendered inoperative because they will no longer be necessary or material, and they may in fact create confusion as the agencies implement this final rule. However, because the agencies have not modified the definition of ‘‘traditional navigable waters,’’ the agencies are retaining Appendix D to help inform implementation of that provision of this final rule, as discussed further in Section III.B.2. 2. Summary of Final Rule Rationale and Public Comment The final rule defines ‘‘waters of the United States’’ to encompass traditional navigable waters and the territorial seas. The agencies’ existing definition of ‘‘waters of the United States’’ includes all waters that are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. See, e.g., 33 CFR 328.3(a)(1). This paragraph of the 2019 Rule (and previous regulations) encompasses waters that are often referred to as waters more traditionally understood as navigable or ‘‘traditional navigable waters.’’ A separate paragraph of the 2019 Rule (and previous regulations) lists the territorial seas as jurisdictional. See 33 CFR 328.3(a)(6). To streamline and simplify the definition of ‘‘waters of the United States,’’ the agencies are finalizing the rule as proposed to include both traditional navigable waters and the territorial seas into a single paragraph of jurisdictional waters. The final rule makes no other substantive changes to these historically regulated categories of waters. The agencies note that the term ‘‘territorial seas’’ is defined in CWA section 502(8), 33 U.S.C. 1362(8), as ‘‘the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.’’ The territorial seas establish the seaward limit of ‘‘waters of the United States.’’ The agencies did not propose including this definition in the rule because it is already defined by statute and are not including the definition or any further interpretation in the final rule. In this final rule, the agencies are streamlining the regulation so that the first category of jurisdictional waters includes both traditional navigable waters and the territorial seas. Most commenters on this topic agreed with the proposal to combine the territorial seas and traditional navigable waters into one paragraph of the regulation, stating that it would streamline and simplify the definition of ‘‘waters of the United States,’’ and makes practical sense since the jurisdictional status of other categories of waters relies on their surface water connection to either a traditional navigable water or the territorial seas. In the proposed rule, the agencies included the territorial seas as a type of traditional navigable water because the agencies had not identified an instance in which a territorial sea would not also be considered traditionally navigable and thus proposed that the broader term should suffice. A few commenters expressed concern that the proposed rule implied that the definition of ‘‘waters of the United States’’ included only the portions of the territorial seas that are navigable and capable of use in interstate or foreign commerce. The agencies did not intend to exclude any portion of the territorial seas as the term is defined in CWA section 502(8), 33 U.S.C. 1362(8). To avoid any confusion, the agencies have made minor modifications to the proposed rule text to further clarify that this category of foundational waters includes both traditional navigable waters and the territorial seas. The final rule states that the category of ‘‘waters of the United States’’ defined in paragraph (a)(1) includes ‘‘the territorial seas, and water which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide.’’ The agencies have not changed their interpretation of traditional navigable waters in this final rule, and the agencies are retaining Appendix D to help inform implementation of this provision with additional clarification in this notice in response to comments. As discussed in Section II.E, the definition of navigable-in-fact waters originates with the Supreme Court’s decision in The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870). In that case, the Supreme Court stated: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Id. at 563. As explained by the Supreme Court in 2012, ‘‘[t]he Daniel Ball formulation has been invoked in considering the navigability of waters for purposes of assessing federal regulatory authority under the Constitution, and the application of specific federal statutes, as to the waters and their beds.’’ PPL Montana, LLC v. Montana, 565 U.S. 576, 592 (2012). ‘‘With respect to the federal commerce power, the inquiry regarding navigation historically focused on interstate commerce.’’ Id. at 593. The Supreme Court further explained that, ‘‘of course, the commerce power extends beyond navigation’’ and cautioned ‘‘that the test for navigability is not applied the same way’’ in all cases. Id. at 592–93; see also Kaiser Aetna v. United States, 444 U.S. 164, 171 (1979) (‘‘[A]ny reliance upon judicial precedent [in this area] must be predicated upon careful appraisal of the purpose for which the concept of navigability was invoked in a particular case.’’ (internal quotation marks, citation omitted, and emphasis in original)). But generally, navigability for purposes of federal regulatory authority under the federal commerce power encompasses waters that were ‘‘once navigable but are no longer,’’ PPL Montana, 565 U.S.at 592 (citing Economy Light & Power Co. v. United States, 256 U.S. 113, 123–24 (1921)), ‘‘waters that only recently have become navigable,’’ id. (citing Philadelphia Co. v. Stimson, 223 U.S. 605, 634–35 (1912)), and waters that ‘‘are not navigable and never have been but may become so by reasonable improvements,’’ id. at 592–93 (citing United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407–08 (1940)). The agencies note that this summary articulated by the Supreme Court in 2012 generally reflects the basic structure of the longstanding jurisdictional test for ‘‘traditional navigable waters’’ retained in paragraph (a)(1) of the final rule. Many commenters expressed support for the agencies’ decision to retain the existing regulatory text describing traditional navigable waters. These VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22282 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 40 See Section II.E for additional discussion of the complex legislative history on this topic, as well as the detailed discussion of the same in the Albrecht & Nickelsburg article cited in note 25. commenters stated that the existing text is clear, concise, predictable, and well understood by the public. Other commenters expressed concern about implementation of the regulation and guidance and suggested modifications to the regulation. Some commenters suggested clarifying that traditional navigable waters must be used to ‘‘transport commerce,’’ as that is the phrase Congress used to describe the waters over which the Corps retains permitting authority when States and Tribes assume CWA section 404 permitting. See 33 U.S.C. 1344(g). As discussed in Section II.E, and consistent with a technical advisory committee report submitted to EPA as part of an effort to modernize the section 404(g) assumption process (see n.28), section 404(g) refers to RHA section 10 waters. Some commenters recommended that the agencies adopt the RHA section 10 definition and the two-part legal test established by The Daniel Ball for ‘‘navigable waters of the United States’’ as the test for ‘‘traditional navigable waters’’ for purposes of implementing the term ‘‘waters of the United States’’ under the CWA. That test requires first that a water be navigable-in-fact, and second that commerce be transported across State or foreign lines on those waters. The Daniel Ball, 77 U.S. (10 Wall.) at 563. The Supreme Court has not spoken directly to the precise meaning of the phrase ‘‘traditional navigable waters’’ as that term applies in the CWA context, but it has stated that the statutory ‘‘term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: Its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’’ SWANCC, 531 U.S. at 172. In the agencies’ view, the Supreme Court has therefore signaled an acceptance of the first prong of The Daniel Ball test. Whether the second prong applies in full to the administrative definition of ‘‘traditional navigable waters’’ is less clear, but the legislative history suggests that Congress had in mind a more expanded notion of interstate commerce when enacting the CWA, including overland links to commercial navigation on navigable-in-fact waters.40 As described in Section II.E, the Supreme Court has stated that nothing in the legislative history of the Act suggests ‘‘that Congress intended to exert anything more than its commerce power over navigation.’’ SWANCC, 531 U.S. at 168 & n.3. The agencies therefore are not modifying the longstanding regulatory text for traditional navigable waters to specifically align it with the RHA test for jurisdiction, as some commenters suggested. The agencies acknowledge that some commenters suggested that Appendix D as-applied in certain circumstances has led to confusion. For example, some commenters expressed concern that Appendix D could be read to support a conclusion that any water that can float a boat, even very shallow draft vessels like canoes and kayaks, is by definition ‘‘susceptible’’ to use in interstate commerce and therefore may be deemed a traditional navigable water. The agencies believe that this interpretation is inconsistent with the cases summarized in Appendix D and sweeps too broadly. For example, whether a water is susceptible to use in interstate commerce requires more than simply being able to float a boat to establish jurisdiction over navigable-in-fact waters under paragraph (a)(1); it requires evidence of physical capacity for commercial navigation and that it was, is, or actually could be used for that purpose. See, e.g., Appendix D (citing The Montello, 87 U.S. 430, 441– 42 (1874); United States v. Holt State Bank, 270 U.S. 49, 56 (1926); United States v. Utah, 283 U.S. 64 (1931); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940)). Other commenters provided examples of traditional navigable water determinations about which the commenters asserted that the capacity to float a boat in a water that is near an interstate highway was deemed sufficient to make a traditional navigable water determination under the paragraph (a)(1) standard. This interpretation is inconsistent with the applicable case law, including the cases discussed in Appendix D. Simply driving across a State line and using a waterbody, or having the potential to use a waterbody, is similar to the theory of jurisdiction that the Supreme Court specifically rejected in SWANCC. One of the arguments raised in support of the ‘‘Migratory Bird Rule’’ for CWA jurisdiction was that individuals cross State lines and engage in commercial activity to hunt or observe migratory birds that use isolated waters as habitat. See SWANCC, 531 U.S. at 166; id. at 195 & n.17 (Stevens, J., dissenting). The SWANCC Court rejected this interpretation of CWA jurisdiction because it raised ‘‘significant constitutional questions’’ that would require the agencies to ‘‘evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce.’’ Id. at 173–74. The ‘‘substantial effects’’ test is the most expansive of the three primary bases for exercising congressional authority under the Commerce Clause articulated by the Supreme Court in United States v. Lopez, 514 U.S. 549, 558–59 (1995). This application of the ‘‘substantial effects’’ test to assert CWA jurisdiction over waters beyond those more traditionally understood as navigable was not intended by Appendix D and has been rejected by the SWANCC Court because it was inconsistent with Congress’ intent to exercise its more traditional ‘‘commerce power over navigation.’’ SWANCC, 531 U.S. at 173 & n.8. Thus, the legal principles summarized in Appendix D were not intended to endorse, and should not be interpreted as endorsing, the application of the ‘‘substantial effects’’ test to CWA jurisdiction, or otherwise suggesting that the mere capacity to float a boat makes a waterbody susceptible to commercial navigation. The agencies intend to update their guidance materials, if and as necessary, as the agencies begin to implement the revised tests for jurisdiction established by the final rule, both initially and as the agencies gain field experience to address implementation questions that may arise. As part of that process, the agencies will continue to evaluate prior guidance on how to apply established case law principles to traditional navigable water determinations. The agencies will also implement field elevation procedures should difficult legal questions arise, including requiring such interpretations to be reviewed by senior legal staff at each of the agencies’ respective headquarters. Implementation of this section of the traditional navigable waters provision of paragraph (a)(1) in the final rule will be case-specific, as it has always been. This case-specific analysis will include relevant portions of EPA and Corps regulations, prior determinations by the Corps and by the federal courts, and case law. Should the agencies determine that additional, more formal guidance on traditional navigable waters is warranted, the agencies will develop any such guidance in compliance with Executive Order 13891, and with any applicable public participation requirements. C. Interstate Waters 1. What are the agencies finalizing? Consistent with the proposal, this final rule removes interstate waters, including interstate wetlands, as a separate category of ‘‘waters of the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22283 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 41 U.S. EPA and U.S. Department of the Army. Technical Support Document for the Clean Water Rule: Definition of Waters of the United States (May 2015) (Docket ID: EPA–HQ–OW–2011–0880– 20869), available at https://www.regulations.gov/ document?D=EPA-HQ-OW-2011-0880-20869. United States.’’ The agencies are finalizing this aspect of the proposal to more closely align the regulatory definition with the constitutional and statutory authorities reflected in the CWA and judicial interpretations of the term ‘‘navigable waters,’’ while balancing the statute’s objective to restore and maintain the integrity of the nation’s waters and its policy directives to preserve and protect the rights and responsibilities of the States. Many commenters supported the removal of interstate waters and wetlands as an independent category of ‘‘waters of the United States.’’ Those commenters stated that such a category was not authorized by the CWA and that, as proposed by the agencies, waters must be connected to traditional navigable waters to be jurisdictional under the CWA. Commenters also stated that interstate waters and wetlands that actually fall within the scope of CWA jurisdiction would be covered by the other categories of waters as proposed. Other commenters opposed removing interstate waters as an independent jurisdictional category. Those commenters stated that any water that crosses a State line is by definition a ‘‘water of the United States.’’ The same is true, some commenters added, for waters that cross tribal boundaries. Additional commenters added that the proposed rule would arbitrarily narrow the scope of CWA jurisdiction over ecologically important waters and recommended that the agencies continue to regulate interstate waters. Other commenters suggested that the exclusion for ephemeral features, if finalized, would help balance the inclusion of interstate waters as a category. The agencies have considered this diverse range of opinions, and for the reasons discussed below, have concluded that the best interpretation of the CWA and its legislative history is to finalize the regulatory text as proposed, without a separate interstate waters category. Interstate waters and interstate wetlands remain subject to CWA jurisdiction under the final rule if they are waters identified in paragraph (a)(1), (2), (3), or (4) (generally referred to as ‘‘paragraph (a)(1) through (4) waters’’ or ‘‘a paragraph (a)(1) through (4) water’’ in this notice). 2. Summary of Final Rule Rationale and Public Comment The agencies have evaluated their earlier legal and policy rationales supporting the inclusion of interstate waters as a separate category of ‘‘waters of the United States’’ and comments on the proposed rule and are not including this category in the final rule. The agencies have concluded that the regulation of interstate waters as a standalone category is based on an overly broad reading of the original Water Pollution Control Act (WPCA) of 1948 and lacks foundation in statutory text of the 1972 CWA amendments. The WPCA stated that the ‘‘pollution of interstate waters in or adjacent to any State or States (whether the matter causing or contributing to such pollution is discharged directly into such waters or reaches such waters after discharge into a tributary of such waters), which endangers the health or welfare of persons in a State other than that in which the discharge originates, is hereby declared to be a public nuisance and subject to abatement as herein provided.’’ WPCA of 1948, 2(d)(1), (4), 62 Stat. 1155, 1156–57. The statute defined ‘‘interstate waters’’ as ‘‘all rivers, lakes, and other waters that flow across, or form a part of, State boundaries.’’ Id. at 10(e), 62 Stat. 1161. In 1961, Congress amended the statute to substitute the term ‘‘interstate or navigable waters’’ for ‘‘interstate waters’’ in the statute’s enforcement provision while making minor changes to the definition of ‘‘interstate waters.’’ See Public Law 87–88, 75 Stat. 208 (1961). In 1965, Congress again amended the statute to require states to develop water quality standards for all ‘‘interstate waters’’ within their borders. See Public Law 89–234, 79 Stat. 908 (1965). In 1972, Congress amended the statute again and selected the term ‘‘navigable waters’’ as the operative term for the major regulatory programs established by the 1972 amendments, dropping the definition of ‘‘interstate waters’’ from the statute. See, e.g., 33 U.S.C. 1362(7) (defining ‘‘navigable waters’’ as ‘‘waters of the United States’’). In doing so, however, Congress allowed States to retain existing water quality standards for interstate waters developed under the pre-1972 statutory program. See 33 U.S.C. 1313(a). The EPA promulgated its first regulatory definition for the term ‘‘waters of the United States’’ in 1973. 38 FR 13528 (May 22, 1973). In that regulation, the EPA administratively determined that ‘‘interstate waters’’ should be a separate category of ‘‘waters of the United States,’’ distinct from the traditional navigable waters category, and until this final rule the agencies had retained it as a separate category. The agencies previously viewed navigable and interstate waters as having distinct and separate meanings because Congress in 1961 used both terms in the statute. The agencies explained their prior interpretation in part through the doctrine of congressional acquiescence, in that Congress was aware of the EPA’s retention of ‘‘interstate waters’’ as a separate category when amending the CWA in 1977 (making no amendments to remove the agencies’ regulatory inclusion of interstate waters), and therefore acquiesced to its inclusion as a separate category. The agencies have also historically relied on two Supreme Court cases—Illinois v. City of Milwaukee, 406 U.S. 91 (1972) and City of Milwaukee v. Illinois, 451 U.S. 304 (1981)—addressing interstate water pollution to further support their prior interpretation. In the 1972 case, which was decided prior to the date of the 1972 CWA amendments, the Supreme Court referred to the two categories in the disjunctive, implying that the Court viewed the pre-1972 statutory program as encompassing two separate categories. See Illinois, 406 U.S. at 102 (‘‘it is federal, not state, law that in the end controls pollution of interstate or navigable waters’’) (emphasis added). The 1981 case is described further below. The agencies also have referred to section 303(a) of the CWA as further evidence that Congress intended ‘‘interstate waters’’ to be retained as an independent category of jurisdictional waters because that provision authorized water quality standards for ‘‘interstate waters’’ developed following the 1965 amendments to remain in effect, subject to revision under the new statutory program. A more complete summary of the agencies’ prior legal position with respect to interstate waters was included in a Technical Support Document prepared in support of the 2015 Rule (‘‘2015 Rule TSD’’).41 The agencies now conclude that their prior interpretation is inconsistent with the text and structure of the CWA. When Congress enacted the 1972 CWA amendments, it selected the term ‘‘navigable waters’’ to frame the scope of federal regulatory jurisdiction under the Act. Rather than interpreting those amendments as retaining ‘‘interstate waters’’ as a separate and distinct category of ‘‘waters of the United States,’’ the agencies now conclude that a more natural interpretation of the 1972 amendments is an express rejection of that independent category, as Congress had before it both options within the scope of the statute it was modifying. Congress specifically did not carry that term forward as the operative phrase for VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22284 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations federal jurisdiction. Under basic canons of statutory construction, the agencies begin with the presumption that Congress did so intentionally. See, e.g., Stone v. INS, 514 U.S. 386, 397 (1995) (‘‘When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.’’). Congressional acquiescence is a doctrine of limited application and was specifically rejected as a basis for expansive federal jurisdiction in SWANCC in the context of analyzing the Corps’ 1977 regulations. SWANCC, 531 U.S. at 170–71 (‘‘Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.’’). The plurality opinion in Rapanos further elaborated, when also rejecting the notion that Congress acquiesced to the Corps’ 1977 regulations, that ‘‘Congress takes no governmental action except by legislation. What the dissent refers to as ‘Congress’ deliberate acquiescence’ should more appropriately be called Congress’s failure to express any opinion.’’ Rapanos, 547 U.S. at 750 (Scalia, J., plurality). The plurality explained that we cannot know whether Congress’ inaction resulted from their belief that the Corps’ regulations were correct, or from other reasons, such as confidence that courts would correct excesses or political considerations. See SWANCC, 531 U.S. at 169–70, 178 n.5 (‘‘Absent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation.’’). The agencies now conclude, consistent with the admonitions of SWANCC and the Rapanos plurality, that the doctrine of congressional acquiescence is not a sound basis to guide the agencies’ decision regarding the scope of federal jurisdiction over certain waters in this final rule, particularly as it applies to interstate waters divorced from any notion of commercial navigability. The legislative history of the 1972 amendments, in fact, supports the agencies’ conclusion that Congress did not consider interstate waters and navigable waters to be two separate and distinct categories, and instead referred to terms in the pre-1972 statutory regime conjunctively as ‘‘interstate navigable waters.’’ S. Rep. No. 92–414, at 2 (1971) (‘‘Each State was required by the 1965 Act to develop standards for water quality within its boundaries. These standards were to be applied to all interstate navigable waters flowing through the State; intrastate waters were not included.’’) (emphasis added); id. at 4 (‘‘The setting of water quality standards for interstate navigable waters . . . is the keystone of the present program for control of water pollution.’’) (emphasis added); id. (‘‘The States have first responsibility for enforcement of their standards. When approved by the [EPA], however, the standards for interstate navigable waters become Federal-State standards.’’) (emphasis added). In fact, the legislative history suggests that Congress modified the text of the statute in 1972 in part because the States had narrowly interpreted the phrase ‘‘interstate’’ to apply only to interstate navigable waters and had failed to establish water quality standards for the intrastate tributaries to such waters. See, e.g., id. at 77 (‘‘The control strategy of the Act extends to navigable waters .... Through a narrow interpretation of the definition of interstate waters the implementation [of the] 1965 Act was severely limited.’’); 118 Cong. Rec. 10240 (1972) (the amendment ‘‘expands the coverage of the law to intrastate, as well as interstate navigable waterways’’) (emphasis added). In 1976, the Supreme Court shared the same view of the pre- 1972 statutory scheme: ‘‘Before it was amended in 1972, the Federal Water Pollution Control Act employed ambient water quality standards specifying the acceptable levels of pollution in a State’s interstate navigable waters as the primary mechanism in its program for the control of water pollution.’’ EPA v. California, 426 U.S. 200, 202 (1976) (emphasis added) (footnote omitted). This history suggests that the section 303(a) provision relating to existing water quality standards for ‘‘interstate waters’’ was referring to ‘‘interstate navigable waters,’’ not interstate waters more broadly. Neither Supreme Court case previously relied on by the agencies and discussed in the 2015 Rule TSD addressed the specific question whether ‘‘interstate waters’’ and ‘‘navigable waters’’ are separate and distinct categories of jurisdictional waters under the CWA. They instead addressed interstate water pollution generally, and the water at issue in those cases was Lake Michigan, an interstate navigable- in-fact water. The 1981 decision, however, did recognize that the 1972 amendments ‘‘were viewed by Congress as a ‘total restructuring’ and ‘complete rewriting’ of the existing water pollution legislation considered in that case.’’ Milwaukee, 451 U.S. at 317 (citing legislative history of the 1972 CWA amendments). This supports the agencies’ conclusion that prior iterations of the statute, referring to both interstate waters and navigable waters, were replaced with a completely new program in 1972, not that certain aspects of that program continued through congressional acquiescence in a later regulatory determination. The final rule therefore eliminates ‘‘interstate waters’’ as a separate category of ‘‘waters of the United States.’’ By eliminating a separate category for interstate waters, the final rule adheres to the legal principles discussed in Section II.E by including within the definition of ‘‘waters of the United States’’ traditional navigable waters, the territorial seas, and waters subject to the ebb and flow of the tide; tributaries to such waters; certain lakes, ponds, and impoundments of otherwise jurisdictional waters; and wetlands adjacent to jurisdictional waters. Because the agencies’ authority flows from Congress’ use of the term ‘‘navigable waters’’ in the CWA, the agencies lack authority to regulate waters untethered from that term. Nothing in the legislative history of the 1972 CWA amendments ‘‘signifies that Congress intended to exert anything more than its commerce power over navigation.’’ SWANCC, 531 U.S. at 168 n.3. Therefore, those interstate waters that would satisfy the definitions in this final rule are jurisdictional; interstate waters without any surface water connection to traditional navigable waters or the territorial seas are not within the agencies’ authority under the CWA and are more appropriately regulated by the States and Tribes under their sovereign authorities. The agencies’ rationale is supported by the U.S. District Court for the Southern District of Georgia’s remand order. Georgia v. Wheeler, No. 2:15–cv– 00079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). There, the court directly addressed the 2015 Rule’s assertion of authority over all interstate waters, including nonnavigable interstate waters. Id. at *10–13. The court found that ‘‘the inclusion of all interstate waters in the definition of ‘waters of the United States,’ regardless of navigability, extends the Agencies’ jurisdiction beyond the scope of the CWA because it reads the term navigability out of the CWA.’’ Id. at *12. The court also found that, because the 2015 Rule would assert jurisdiction over tributaries, adjacent waters, and case-by- case waters based on their relationship to non-navigable isolated interstate waters, it would result in federal jurisdiction over even the most remote and isolated waters that the Supreme Court held in SWANCC are beyond the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22285 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 42 See U.S. EPA and Department of the Army, Technical Support Document of the EPA-Army Clean Water Rule at 210 (May 20, 2015) (‘‘2015 Rule TSD’’) (Docket ID: EPA–HQ–OW–2011–0880– 20869) available at https://www.regulations.gov/ document?D=EPA-HQ-OW-2011-0880-20869. (‘‘In City of Milwaukee, the Court found that the CWA was the ‘comprehensive regulatory program’ that ‘occupied the field’ (451 U.S. 317) with regard to interstate water pollution, eliminating the basis for an independent common law of nuisance to address interstate water pollution.’’). The 2015 Rule TSD also asserts that the Court ‘‘expressly overruled’’ its decision in Illinois; however, a more precise statement would be that the Court found no federal common law remedy available ‘‘at least so far as concerns the claims of respondents’’ because Congress occupied the field with a federal regulatory program that establishes effluent limits and other specific requirements that supersede the ‘‘often vague and indeterminate nuisance concepts and maxims of equity jurisprudence.’’ City of Milwaukee, 451 U.S. at 317 (emphasis added). reach of the CWA. Id. at *13. The agencies agree with the court’s analysis and conclusion. This final rule marks a shift away from prior agency positions. The agencies received public comment that the proposal had failed to analyze potential impacts resulting from the removal of ‘‘interstate waters’’ as a separate category, but as noted in the preamble to the proposed rule, the agencies are not aware of any database that identifies the jurisdictional status of interstate waters based solely on the fact that they cross state lines, or any other resource that would identify these waters. The agencies therefore lack the ability to perform a comparative analysis with any precision. Some commenters provided examples of interstate waters that may lose jurisdictional status if the separate category is eliminated; however, the Corps’ ORM2 database does not contain any jurisdictional determinations based solely on a water’s status as an interstate water. Since issuance of the Rapanos Guidance, the Corps has not tracked this category separately for approved jurisdictional determinations conducted under the Guidance in ORM2. The agencies requested comment on the rationales in favor of and opposed to a separate jurisdictional category for ‘‘interstate waters.’’ Some commenters supported the proposal to remove ‘‘interstate waters’’ as a separate category, noting that there is no statutory or constitutional basis to regulate interstate waters that would not otherwise be jurisdictional and suggesting that the agencies lacked the authority to include a separate ‘‘interstate’’ category in earlier versions of the regulations. Other commenters opposed the proposal, asserting that the text and structure of the CWA, legislative history, and prior court cases, including Justice Scalia’s discussion in Rapanos, demonstrate that the CWA applies to interstate waters regardless of navigability. The agencies considered these comments and, for the reasons explained above, conclude that the final rule most closely aligns with the agencies’ constitutional and statutory authorities reflected in the CWA and relevant judicial interpretations of the term ‘‘navigable waters’’ and the legislative history of the CWA, while balancing the statute’s objective to restore and maintain the integrity of the nation’s waters and its policy directives to preserve and protect the rights and responsibilities of the States. Some commenters stated that the agencies did not provide sufficient rationale for deviating from their prior analysis and interpretation, as provided in the 2015 Rule TSD. The agencies disagree, as the proposal clearly identified independent reasons questioning the validity of the agencies’ prior interpretation. The agencies’ 2015 Rule TSD, for example, included three primary arguments supporting the prior interpretation: First, the language, structure, and history of the CWA demonstrate that Congress intended to include interstate waters in addition to navigable waters; second, the Supreme Court decisions in Rapanos and SWANCC did not constrain CWA jurisdiction over isolated, nonnavigable, interstate waters; and third, Supreme Court precedent supports jurisdiction over interstate waters, regardless of navigability. These arguments are addressed in the proposal and in earlier sections of this notice, but the agencies provide additional detail to respond to comments received as follows. The 2015 Rule TSD analyzed two Supreme Court decisions to support its conclusion that interstate waters should be a separate category of jurisdiction under the CWA. The first decision was issued in 1972, just prior to the 1972 CWA amendments, and concluded that federal common law was appropriate to resolve a cross-border water pollution dispute among states where existing statutes did not address the dispute. Illinois, 406 U.S. 91. The Court found that where ‘‘no fixed rules’’ govern cross-boundary pollution disputes, ‘‘these will be equity suits in which the informed judgment of the chancellor will largely govern.’’ Id. at 107–08. The second decision was issued in 1981, and it analyzed the effect of the 1972 amendments on a federal common law claim concerning the same cross- border water pollution dispute that was presented the 1972 case. City of Milwaukee, 451 U.S. 304. In that case, the Court acknowledged the 1972 amendments and noted that ‘‘[t]he establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law.’’ Id. at 319 (emphasis added). Contrary to the assertions in the 2015 Rule TSD, however, the Court did not conclude that the CWA occupies the field with regard to all interstate waters.42 Instead, the Court considered the facts of the case before it—whether NPDES permits issued by an authorized State in compliance with the CWA could be modified or augmented by federal common law claims brought by a downstream State. Focusing on respondents’ claims that discharges from the facilities were causing a public nuisance, the Court observed that, ‘‘the action of Congress in supplanting the federal common law is perhaps clearest when the question of effluent limitations for discharges from the two treatment plants is considered.’’ City of Milwaukee, 451 U.S. at 319–20. The Court identified the numerous provisions of the permits that addressed discharges and overflows from the facilities, and the State-initiated enforcement action contemplated by the CWA, and concluded that ‘‘[t]here is no ‘interstice’ here to be filled by federal common law: Overflows are covered by the Act and have been addressed by the regulatory regime established by the Act. Although a Federal court may disagree with the regulatory approach taken by the agency . . . such disagreement alone is no basis for the creation of federal common law.’’ Id. at 323. The Court also noted that in its 1972 decision, the Court was concerned that the downstream State ‘‘did not have any forum in which to protect its interests unless federal common law were created,’’ City of Milwaukee, 541 U.S. at 325, but that the NPDES permitting provisions of the 1972 amendments ‘‘provided ample opportunity for a State affected by decisions of a neighboring State’s permit-granting agency to seek redress.’’ Id. at 325–26 (identifying the CWA requirement to provide notice to affected States and opportunity to comment and request public hearings, the Wisconsin law that provides the same, affected States’ opportunity under the CWA to petition the EPA to object to a NPDES permit, and noting that respondents did not take advantage of these provisions). The case therefore presented a dispute between States concerning NPDES permits lawfully issued for discharges into an otherwise VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22286 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 43 In a footnote, the 2015 Rule TSD identifies two other Supreme Court decisions and concludes that ‘‘[n]othing in either decision limits the applicability of the CWA to interstate water pollution disputes involving navigable interstate waters or interstate waters connected to navigable waters.’’ 2015 Rule TSD at 211 n.16 (referencing International Paper v. Ouellette, 479 U.S. 481 (1987), and Arkansas v. Oklahoma, 503 U.S. 91 (1992)). Similar to the facts of City of Milwaukee, both of these cases addressed disputes that arose in the CWA’s NPDES permitting context for waters that would otherwise be jurisdictional—Lake Champlain and the Illinois River. In neither case was the Court asked to consider whether or how the CWA may apply to non-navigable interstate waters, and these cases do not provide useful context or precedent on that issue. The 2015 Rule TSD similarly concluded that neither SWANCC nor Rapanos addressed or limited CWA jurisdiction over non-navigable interstate waters. See Section II.E of this notice for the agencies’ detailed analysis of the SWANCC and Rapanos decisions. 44 In addition, the notion that categorical federal regulation of interstate waters is necessary to end water pollution disputes between States would call into the question the need for CWA section 103 (‘‘Interstate Cooperation and Uniform Laws’’), 33 U.S.C. 1253, which establishes a framework for the Administrator to encourage cooperation between States for the prevention and control of pollution. navigable water—Lake Michigan. The Supreme Court did not consider disputes outside of the NPDES permit program or those concerning non- navigable interstate waters, and the Court did not broadly conclude that the CWA occupies the field of all interstate water pollution.43 All it had before it was the CWA, and as discussed in Section II, Congress chose not to exercise its full powers under the Commerce Clause when enacting the 1972 amendments. Congress specifically recognized that there are other land and water resources that are more appropriately regulated by the States and Tribes under their sovereign authorities. Field preemption cannot extend beyond the field. Hines v. Davidowitz, 312 U.S. 52, 78–79 (1941) (‘‘[e]very Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution’’); see also Gonzales v. Oregon, 546 U.S. 243, 275 (2006); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985)). The agencies also requested comment on an alternative approach that would retain ‘‘interstate waters’’ as a separate category, reflecting longstanding agency practice, and whether the term ‘‘interstate’’ should be interpreted as crossing between States, between States and tribal lands, between States and/or tribal lands and foreign countries, or other formulations. Some commenters opposed this alternative approach, stating that the agencies lacked the authority to codify or implement it. Other commenters supported retaining ‘‘interstate waters’’ as a separate category and expressed concern that removing it would eliminate the EPA’s role as a co-regulator in cross-boundary disputes over water quality. The CWA provides two opportunities for the EPA to mediate disputes among States: The section 401(a)(2) neighboring jurisdiction notification provisions for federally permitted projects that may discharge to navigable waters and the section 319(g) provisions allowing the EPA to convene an interstate management conference to address cross-boundary nonpoint pollution in navigable waters. In the past, these provisions have been invoked infrequently by States, and the agencies do not expect a significant increase in cross-boundary disputes as a result of this rulemaking. In addition, the EPA can address concerns of States whose waters may be affected by the issuance of a permit in another State through the permit objection process pursuant to CWA sections 402(b)(5), 402(d)(d), and 40 CFR 123.44(c)(2). As demonstrated in City of Milwaukee, if a cross-boundary dispute is one that is contemplated and addressed by the CWA, such as the sufficiency of effluent limits in a NPDES permit, the statute has occupied the field and federal common law does not provide a remedy. 451 U.S. at 317. However, if a State NPDES permit or a section 401 certification is not required, the EPA does not have a role within the CWA permitting framework to address cross- boundary disputes; similarly, if a water is not a ‘‘water of the United States,’’ then the EPA’s conference convening authorities under section 319(g) would not apply. In addition, and as described in the Section II.B of this notice, the CWA provides the EPA with numerous other authorities to provide technical assistance to States and Tribes to facilitate the management of non- jurisdictional waters.44 Under the current framework, the remedies available for cross-boundary water pollution disputes over non- jurisdictional waters depends upon the parties and the issues in the case. As an initial matter, many State programs regulate more waters than are covered by the federal definition of ‘‘waters of the United States’’ and may have similar notification provisions in place for States affected by a State-issued NPDES permit. See e.g., Wis. Stat. 281.33 (authorizing Wisconsin to issue NPDES permits for all waters of the State); Wis. Admin. Code. 203.03 (providing notice during the NPDES process to other agencies, including other States potentially affected by the discharge). This important fact supports the agencies’ conclusion that all States protect their water resources under State law and many have the ability and expertise to do so in the absence of federal regulation, as discussed in more detail in the Resource and Programmatic Assessment for the final rule. As they do today, remedies for pollution disputes among States that do not implicate CWA sections 319(g), 401, or 402 would likely derive from federal common law under the Supreme Court’s original jurisdiction. See, e.g., Illinois, 406 U.S. at 98–99. Remedies for disputes between a State and a public or private party would likely derive from State or federal common law and be heard by State or Federal courts. See id. at 100, 107–08; International Paper, 479 U.S. at 497–500. D. Tributaries 1. What are the agencies finalizing? In this final rule, the agencies retain ‘‘tributaries’’ as a category of jurisdictional waters subject to CWA jurisdiction. The final rule defines ‘‘tributary’’ to mean a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to the territorial seas or traditional navigable waters (paragraph (a)(1) waters) in a typical year either directly or through one or more tributaries (paragraph (a)(2) waters), lakes, ponds, and impoundments of jurisdictional waters (paragraph (a)(3) waters), or adjacent wetlands (paragraph (a)(4) waters). A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of this definition. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. As discussed in greater detail in Section III.E, the term ‘‘tributary’’ includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of the ‘‘tributary’’ definition. A ditch can also be a traditional navigable water if it meets the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22287 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations conditions of that category. The agencies are excluding all other ditches from the definition of ‘‘waters of the United States,’’ other than those identified in paragraph (a)(1) or (2) and ditches any portion of which are constructed in an adjacent wetland that lack perennial or intermittent flow (meaning they do not satisfy the ‘‘tributary’’ definition in paragraph (c)(12)) but that develop wetlands in all or portions of the ditch that satisfy the ‘‘adjacent wetlands’’ definition in paragraph (c)(1). Excluded ditches may be subject to regulation under State or tribal law and could potentially be conveyances of discharges of pollutants from ‘‘point sources’’ subject to CWA permitting (see 33 U.S.C. 1362(14)) if they convey pollutants from a discharger to jurisdictional waters. Regardless of the name they are given locally (e.g., creek, bayou, branch, brook, run), or their size (e.g., discharge volume, width, depth, stream order), waters that meet the definition of ‘‘tributary’’ are jurisdictional under this final rule. Surface features that flow only in direct response to precipitation, such as ephemeral streams, swales, gullies and rills, are not tributaries. These features lack the required perennial or intermittent flow to satisfy the ‘‘tributary’’ definition and therefore are not jurisdictional. However, such features may convey surface water flow from an upstream jurisdictional water to a downstream jurisdictional water without severing jurisdiction of the tributary. The regulatory status of tributaries has evolved over the last several decades, resulting in confusion for the regulated community and regulators alike. Some commenters said that all channels on the landscape that convey water, regardless of flow regime, should be subject to CWA regulation, including both natural and artificial channels. Others asserted that Congress intended to regulate only traditional navigable waters, and navigable tributaries to those waters. Some would regulate all ditches, while others would exclude all ditches from CWA jurisdiction. Some stated that all ephemeral washes should be regulated, while others viewed ephemeral features as more like land that is wet after it rains. Some would extend jurisdiction to perennial rivers and streams and cut off jurisdiction for intermittent or seasonal waters. Others would regulate intermittent waters based on a minimum number of days of continuous flow, such as 30, 90, or 185. Even the Supreme Court has struggled with articulating clear principles governing which tributaries to traditional navigable waters should be subject to CWA jurisdiction, as evidenced by the fractured opinion in Rapanos. What is clear from that opinion, however, is that a majority of the Court believed the agencies’ existing standard for tributaries at that time raised serious questions regarding the scope of the agencies’ authority under the CWA. See Section II.E.2. The agencies proposed a definition for ‘‘tributary’’ that they believed respected their statutory and constitutional authorities, consistent with principles established in Riverside Bayview, SWANCC, and Rapanos. Many commenters agreed with the proposal, indicating that it balanced federal authority over the core waters targeted by Congress under the CWA with waters that are more appropriately regulated solely by the States and Tribes. Others argued that the proposed ‘‘tributary’’ definition regulated too broadly, preferring instead that the agencies restrict jurisdiction to perennial tributaries only. Others argued that the agencies failed to regulate ecologically important ephemeral reaches and cut off jurisdiction to headwater reaches that are important to the tributary network. The agencies have considered all comments received and have crafted a final regulatory definition of ‘‘tributary’’ designed to adhere to the legal principles articulated in this notice and that provides a predictable, implementable regulatory framework. The agencies are finalizing their proposal to regulate perennial and intermittent tributaries to traditional navigable waters, while excluding ephemeral streams from CWA jurisdiction as those features are more appropriately regulated by States and Tribes under their sovereign authorities. However, the agencies have modified the final rule to reduce the instances in which natural and artificial features and structures sever jurisdiction of upstream waters, as discussed in Section III.A.3 and in more detail below. The agencies conclude that interpreting upstream waters that contribute surface water flow in a typical year to a paragraph (a)(1) water to be part of the regulated tributary network better balances the CWA’s objective in section 101(a) with the need to respect State and tribal authority over land and water resources as mandated by Congress in section 101(b). 2. Summary of Final Rule Rationale and Public Comment The definition of ‘‘tributary’’ in the final rule reflects the authority granted by Congress to regulate navigable waters and the interconnected nature of the tributary system, as well as the ordinary meaning of the term ‘‘waters.’’ In addition, the agencies are adhering to their constitutional and statutory authority regarding the role of the Federal government and limits on its authority to regulate the use of land and waters within State and tribal boundaries, and their intention to establish a clear and easily implementable definition. The definition of ‘‘tributary’’ in the final rule sets a boundary on the scope of the regulation to ensure that it is consistent with the role of the Federal government under the Constitution and the CWA. As the Supreme Court recognizes, States traditionally exercise ‘‘primary power over land and water use,’’ SWANCC, 531 U.S. at 174. The Federal government should avoid pressing against the outer limits of its authority when doing so would infringe upon the traditional rights and responsibilities of States to manage their own waters. See id. at 172–73 and supra Section II.E. Under this final rule, a tributary must be perennial or intermittent, and it must contribute surface water flow in a typical year to a traditional navigable water or territorial sea directly or through one or more waters identified in paragraph (a)(2), (3), or (4) (generally referred to as ‘‘paragraph (a)(2) through (4) waters’’ or ‘‘a paragraph (a)(2) through (4) water’’ in this notice), or through one or more of the features described in Section III.A.3. The ‘‘tributary’’ category includes waters that, due to their relatively permanent flow classifications and their contribution of surface water flow to paragraph (a)(1) waters, are appropriately regulated under the Commerce Clause powers that Congress exercised when enacting the CWA. The agencies have concluded that their regulatory authority under the CWA and Supreme Court precedent is most appropriately interpreted to encompass the perennial and intermittent flow classifications provided in the definition of ‘‘tributary,’’ and that this approach also balances the regulation of the Federal government with the authority of States and Tribes to more appropriately regulate certain waters within their jurisdiction, such as ephemeral streams. The agencies have also concluded that this definition effectively furthers both the objective of the Act to ‘‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters’’ and the ‘‘policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan for the development and VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22288 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations use (including restoration, preservation, and enhancement) of land and water resources . . . .’’ 33 U.S.C. 1251(b); see also Rapanos, 547 U.S. at 737 (Scalia, J., plurality). The agencies’ approach to defining ‘‘tributary’’ is also intended to ensure that federal regulatory jurisdiction does not intrude upon State, tribal, and local control of land and water use decisions. See Rapanos, 547 U.S. at 738 (Scalia, J., plurality) (‘‘Regulation of land use, as through the issuance of the development permits . . . is a quintessential state and local power.’’). With this final definition, the agencies seek to avoid ‘‘impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.’’ 33 U.S.C. 1370. A clear regulatory line between jurisdictional and excluded waters has the additional benefit of being less complicated than prior regulatory regimes that required a case-specific significant nexus analysis. Ephemeral features, such as dry washes and arroyos, that lack the perennial or intermittent flow necessary to satisfy the ‘‘tributary’’ definition under this final rule are excluded from the definition. Although the agencies are not regulating features that flow only in direct response to precipitation, certain ephemeral features can convey surface water flow that is sufficient to maintain the jurisdictional status of the upstream tributary reach, as discussed in Section III.A.3. States and Tribes may also address ephemeral features as ‘‘waters of the State’’ or ‘‘waters of the Tribe’’ under their own laws to the extent they deem appropriate, as envisioned under section 101(b) of the CWA. In addition, an ephemeral feature may convey a discharge of pollutants from a point source to a water of the United States. See Rapanos, 547 U.S. at 743–44 (Scalia, J., plurality). Some commenters stated that the agencies’ proposal for tributaries is not supported by science and is inconsistent with the CWA and judicial precedent. The agencies disagree. As discussed in the preamble to the proposed rule, the agencies relied on the available science to help inform where to draw the line of federal jurisdiction over tributaries, consistent with their statutory authorities. See 84 FR 4175 (‘‘This proposed definition [of tributary] is also informed by the science.’’) As noted in that preamble, while the SAB found that the draft Connectivity Report ‘‘provides strong scientific support for the conclusion that ephemeral, intermittent, and perennial streams exert a strong influence on the character and functioning of downstream waters and that tributary streams are connected to downstream waters,’’ the SAB stressed that ‘‘the EPA should recognize that there is a gradient of connectivity.’’ SAB Review at 3. The SAB recommended that ‘‘the interpretation of connectivity be revised to reflect a gradient approach that recognizes variation in the frequency, duration, magnitude, predictability, and consequences of physical, chemical, and biological connections.’’ Id. at 2 (emphasis added). To describe the ‘‘connectivity gradient’’ and the probability that impacts occurring along the gradient will be transmitted downstream, the SAB developed a figure as part of its review of the Draft Connectivity Report. See id. at 54 figure 3. The figure illustrates the connectivity gradient and potential consequences between perennial, intermittent, and ephemeral streams and downstream waters and depicts a decreased ‘‘probability that changes . . . will be transmitted to downstream waters’’ at flow regimes less than perennial and intermittent. Id. While the SAB stated that ‘‘at sufficiently large spatial and temporal scales, all waters and wetlands are connected,’’ it found that ‘‘[m]ore important are the degree of connection (e.g., frequency, magnitude, timing, duration) and the extent to which those connections affect the chemical, physical, and biological integrity of downstream waters.’’ Id. at 17. The SAB, however, recognized that ‘‘[t]he Report is a science, not policy, document that was written to summarize the current understanding of connectivity or isolation of streams and wetlands relative to large water bodies such as rivers, lakes, estuaries, and oceans.’’ id. at 2. ‘‘The SAB also recommended that the agencies clarify in the preamble to the final rule that ‘significant nexus’ is a legal term, not a scientific one.’’ 80 FR 37065. And in issuing the 2015 Rule, the agencies stated, ‘‘the science does not provide a precise point along the continuum at which waters provide only speculative or insubstantial functions to downstream waters.’’ Id. at 37090. Thus, the agencies use the Connectivity Report to inform certain aspects of the revised definition of ‘‘waters of the United States,’’ such as recognizing the ‘‘connectivity gradient’’ and potential consequences between perennial, intermittent, and ephemeral streams and downstream waters within a tributary system. The ‘‘tributary’’ definition that the agencies are finalizing, which takes into consideration the connectivity gradient, ‘‘rests upon a reasonable inference of ecological interconnection’’ between those tributaries and paragraph (a)(1) waters. 547 U.S. at 780 (Kennedy, J., concurring in the judgment). The agencies acknowledge that science alone cannot dictate where to draw the line between Federal and State waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA. The agencies also relied on scientific principles, as appropriate and within the agencies’ statutory limits, to inform several other aspects of this final rule, including, for example, how the agencies define the flow classifications (perennial, intermittent, ephemeral) used throughout the regulation, the incorporation of inundation and flooding to create surface water connections, and the use of the typical year concept that relies upon a large body of precipitation and other climatic data to inform what may be within a normal range for a particular geographic region. The agencies will also rely on science to implement the final rule, such as with the development of tools and scientific-based approaches to identify flow classification and typical year conditions. Thus, contrary to the assertions of some commenters, the agencies’ decisions in support of this final rule have been informed by science. The agencies therefore agree with other commenters who stated that the agencies appropriately balanced science, policy, and the law when crafting the proposed rule. But to be clear, as discussed in the preamble to the proposed rule, 84 FR 4176, and in Section II.E of this notice, science cannot dictate where to draw the line between Federal and State or tribal waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA. The definition of ‘‘waters of the United States’’ must be grounded in a legal analysis of the limits on CWA jurisdiction reflected in the statute and Supreme Court guidance. By defining perennial and intermittent tributaries of traditional navigable waters as jurisdictional and ephemeral features as non- jurisdictional, the agencies balance Congress’ intent to interpret the term ‘‘navigable waters’’ more broadly than the classical understanding of that term, see Riverside Bayview, 474 U.S. at 133, with the fact that nothing in the legislative history of the Act ‘‘signifies that Congress intended to exert anything more than its commerce power over navigation.’’ SWANCC, 531 U.S. at 168 n.3. The final rule’s definition of ‘‘tributary’’ is also consistent with the Rapanos plurality’s position that ‘‘‘the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22289 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations waters of the United States’ include only relatively permanent, standing, or flowing bodies of waters . . . as opposed to ordinarily dry channels . . . or ephemeral flows of water.’’ Rapanos, 547 U.S. at 732–33 see also id. at 736 n.7 (‘‘[R]elatively continuous flow is a necessary condition for qualification as a ‘water,’ not an adequate condition’’ (emphasis in original)). Perennial waters, by definition, are permanent. And while the plurality did note that waters of the United States do not include ‘‘ordinarily dry channels through which water occasionally or intermittently flows,’’ id. at 733, the plurality would ‘‘not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.’’ Id. at 732 n.5 (emphasis in original); compare id. at 770 (Kennedy, J., concurring in the judgment) (‘‘an intermittent flow can constitute a stream . . . while it is flowing . . . [i]t follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams’’). The agencies note that intermittent waters may occur seasonally, for example, during times when groundwater tables are elevated or when snowpack runoff produces relatively permanent flow, returning on an annual basis in known, fixed geographic locations. By defining ‘‘tributary’’ as perennial or intermittent rivers and streams that contribute surface water flow to traditional navigable waters or the territorial seas in a typical year, the agencies are establishing that a mere hydrologic connection cannot provide the basis for CWA jurisdiction; the bodies of water must be ‘‘geographical features’’ (i.e., rivers and streams) that are ‘‘relatively permanent’’ (i.e., perennial or intermittent) and that contribute surface water flow to a traditional navigable water or the territorial seas in a typical year. Rapanos, 547 U.S. at 732. This requirement is informed by Rapanos, wherein the plurality determined that the phrase ‘‘the waters of the United States’’ ‘‘cannot bear the expansive meaning that the Corps would give it,’’ id. at 732, and challenged the notion that ‘‘even the most insubstantial hydrologic connection may be held to constitute a ‘significant nexus.’’’ Id. at 728. Similarly, Justice Kennedy noted, ‘‘mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 784–85. The agencies believe that the requirement that a tributary be perennial or intermittent and be connected to a traditional navigable water is reasonable and reflects the plurality’s description of a ‘‘‘wate[r] of the United States’’’ as ‘‘i.e., a relatively permanent body of water connected to traditional interstate navigable waters.’’ Id. at 742. Under the proposed definition of ‘‘tributary,’’ an artificial or natural ephemeral feature would have severed jurisdiction upstream of the feature, because the waterbody would not contribute surface water to a paragraph (a)(1) water on a perennial or intermittent basis. Several commenters supported this approach, noting that waters above ephemeral breaks are more appropriately subject to State or tribal jurisdiction. Others criticized the approach as too restrictive and raised concerns regarding the importance of those upstream waters to the tributary system. The agencies recognize that the proposed rule’s treatment of ephemeral features would have severed jurisdiction for certain relatively permanent bodies of water that are regularly ‘‘connected to’’ traditional navigable waters in a typical year via channelized surface water flow through those features. The final rule has been modified to address these concerns regarding ephemeral breaks between two relatively permanent waters while remaining faithful to the text, structure, and legislative history of the CWA and Supreme Court guidance. As discussed in Section III.A.3, the final rule provides that channelized non-jurisdictional surface water features do not sever jurisdiction of upstream perennial or intermittent waters so long as they convey surface water from such upstream waters to downstream jurisdictional waters in a typical year. The use of ‘‘channelized’’ in this context generally indicates features with a defined path or course, such as a ditch or the bed of an ephemeral stream. The flow must be channelized in the sense of being discrete and confined to a channel, as opposed to diffuse, non- channelized flow. Channelized non- jurisdictional surface water features are generally continuously present on the landscape as geomorphic features and may regularly ‘‘connect’’ the upstream tributary to the downstream jurisdictional water such that those waters can mix and become indistinguishable in a typical year. This may occur, for example, where managed water systems alter the flow classification of a perennial or intermittent tributary to ephemeral but the perennial or intermittent flow returns farther downstream. It could also occur as a result of natural conditions, such as a tributary that becomes a losing stream for a reach, but then becomes perennial again downstream of the losing reach. The losing reach could occur because of water infiltrating into the ground and recharging groundwater, where the water table is below the bottom of the channel bed. The final rule also allows for other types of artificial or natural features, such as dams or boulder fields, which may maintain jurisdiction so long as they convey surface water flow from an upstream tributary to a downstream jurisdictional water in a typical year. The agencies have determined in this final rule that such conditions do not sever jurisdiction for the upstream reach of the tributary if a channelized non- jurisdictional surface water feature conveys surface water flow to a downstream jurisdictional water in a typical year. The agencies have concluded that water flowing through features such as dams or boulder fields can sustain a regular and predictable surface water connection between upstream and downstream waters and therefore can maintain jurisdiction between such waters. In all cases, however, the excluded or ephemeral feature remains non-jurisdictional. Certain other excluded features are incapable of providing channelized surface flow (e.g., groundwater, diffuse stormwater run-off, or directional sheet flow over upland) and therefore sever jurisdiction upstream of such excluded features. The Supreme Court has not spoken directly to the question of whether an ephemeral reach along or downstream of an otherwise jurisdictional tributary severs jurisdiction, and the agencies believe that the final rule appropriately reflects their statutory authority. In particular, the plurality decision in Rapanos emphasized that jurisdictional waters themselves must be relatively permanent and connected to traditional navigable waters, 547 U.S. at 742, but did not specify the type of connection necessary between the relatively permanent waters and downstream traditional navigable waters. Justice Kennedy’s opinion stated that the Corps could identify by regulation categories of tributaries based on ‘‘their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations,’’ id. at 780–81, but fails to provide further guidance. The agencies conclude that the final rule appropriately reflects and balances these general guiding principles by exercising jurisdiction over perennial and intermittent tributaries but not ephemeral streams VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22290 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 45 See Connectivity Report at A–10, defining ‘‘reach’’ as ‘‘a length of stream channel with relatively uniform discharge, depth, area, and slope.’’ A similar definition is used by the USGS, at https://www.usgs.gov/faqs/what-a-reach. and dry washes, while under certain circumstances allowing such channelized features to maintain jurisdiction between upstream and downstream more permanent waters. Some commenters agreed with the agencies’ proposal that ephemeral reaches should sever jurisdiction of upstream waters because those waters no longer have a continuous hydrologic surface connection of relatively permanent flow to a downstream jurisdictional water. Other commenters stated that the proposed definition of ‘‘waters of the United States’’ was inconsistent in that some forms of natural or artificial features could connect upstream tributaries with downstream jurisdictional waters, whereas ephemeral reaches would have severed jurisdiction of upstream perennial and intermittent streams. In addition, many commenters raised concerns about implementing a definition of ‘‘tributary’’ in which an ephemeral feature would sever jurisdiction of upstream reaches, indicating that it may be difficult to apply in the field. Commenters also stated that if ephemeral features severed jurisdiction of perennial and intermittent waters upstream, many waters in certain regions, such as the arid West, would be non-jurisdictional. Some commenters expressed concern that the proposed definition would place a burden on project applicants to identify and anticipate such ephemeral breaks to avoid potential responsibility for compensatory mitigation of upstream losses. The agencies have modified the final rule language in a manner that addresses these concerns. Under the final rule, tributaries that contribute surface water flow to a downstream jurisdictional water in a typical year through certain natural features (such as debris piles or boulder fields) or artificial features (such as culverts or dams) are tributaries, even though these features may result in an interruption in the surface water channel. A perennial or intermittent tributary above the natural or artificial feature does not lose its jurisdictional status as long as the natural or artificial feature continues to convey surface water flow from the upstream reach to a downstream jurisdictional water in a typical year. Commenters also requested clarification on whether a natural feature through which a tributary flows could be considered a jurisdictional feature as part of the tributary itself, such as a boulder field or subterranean river. Natural or artificial features that do not satisfy the surface water flow conditions of the ‘‘tributary’’ definition are not tributaries under this rule, even if they convey surface water flow from upstream relatively permanent waters to downstream jurisdictional waters in a typical year. See Section III.A.3 for additional discussion. Some commenters asked for clarification on whether tributaries are viewed as reaches or as an entire network. The agencies are using the term ‘‘reach’’ in this preamble to the final rule to mean a section of a stream or river along which similar hydrologic conditions exist, such as discharge, depth, area, and slope.45 If a perennial tributary becomes intermittent and then ephemeral and then perennial again, it may be viewed as four separate reaches (e.g., perennial reach, intermittent reach, ephemeral reach, perennial reach), especially if they also share other similarities with respect to depth, slope, or other factors. In general, a reach can be any length of a stream or river, but the agencies are clarifying for implementation purposes that such length is bounded by similar flow characteristics. Commenters suggested that flow classification and jurisdictional status could be determined based on the flow in the majority of a reach (i.e., whether it is perennial, intermittent, and ephemeral), which they said would be simpler than differentiating various segments from the broader stream reach. The agencies are not determining flow classification using the majority of the reach. Under the Rapanos Guidance, a tributary ‘‘reach’’ was identified by a stream order classification system where the relevant reach was used for purposes of a significant nexus determination. However, stream order is not directly relevant to stream and river jurisdiction under this final rule, and instead flow classification is a key aspect in determining the jurisdictional status of a tributary. The agencies conclude that such an approach is easier to implement in light of the final rule’s ‘‘tributary’’ definition and is more consistent with the legal and scientific foundation for the rule. Along the length of a tributary, the flow classification may fluctuate, and the points at which flow classifications change are the points at which a reach is bounded. If a tributary flows through a non- jurisdictional ephemeral reach to downstream jurisdictional waters, the point at which a tributary becomes ephemeral may fluctuate upstream and downstream in a typical year based on climatic conditions, changes in topography and surrounding development, water input, and water withdrawals. When such a transition zone of flow classification occurs, the agencies will use best professional judgment and various tools to identify where the change in flow classification occurs. The agencies have historically implemented comparable approaches at transition zones, for example with the identification of the extent of tidal influence (also referred to as the head of tide). This generally occurs where a river flows into tidal waters and the agencies must identify the farthest point upstream where a tributary is affected by tidal fluctuations in order to determine which lateral extent to apply for the limits of jurisdiction (i.e., high tide line or ordinary high water mark), permitting requirements, and similar factors. There is generally not a hard demarcation distinguishing where a waterbody ceases to be tidal, so the agencies must use best professional judgment utilizing all available information and tools which may assist in making the determination. See Section III.B.3 for additional information. Many commenters recommended that tributaries that were altered or relocated should remain tributaries. The agencies agree with those comments and, consistent with the proposal, have included that provision in the final rule. Many commenters expressed concern about the challenges of implementing a flow-based ‘‘tributary’’ definition where many systems have been modified by human actions. Some commenters also stated that the use of ‘‘naturally occurring’’ in the proposed ‘‘tributary’’ definition was unclear and questioned how it would apply to modified systems. The agencies disagree with the proposition that identifying flow conditions would be challenging in modified systems. An altered tributary is one in which the flow or geomorphic conditions have been modified in some way, for example, by straightening a sinuous tributary, adding concrete or riprap to stabilize the banks of a tributary, reducing flow conditions from perennial to intermittent flow due to water withdrawals, or widening or adding physical features (such as riffle/ pool complex restoration or check dams) to the tributary to reduce the velocity of flow. A relocated tributary is one in which an entire portion of the tributary may be moved to a different location, as when a tributary is rerouted around a city center to protect it from flooding or around a mining complex to enable extraction of commercially VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22291 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations valuable minerals. To be considered a tributary, such features must continue to meet the flow conditions of the ‘‘tributary’’ definition. The agencies conclude that identifying flow conditions in these features would be no more challenging than identifying flow conditions in other tributaries, which the agencies have been doing to apply the Rapanos Guidance since 2008. In a relocated tributary, the reach that has been relocated may meet the definition of ‘‘ditch’’ or may be colloquially called a ditch, which is why, for simplicity and clarity, the agencies have included these ditches in the definition of ‘‘tributary.’’ The agencies also believe that retaining jurisdiction over the relocated tributary is consistent with its legal authorities and the agencies’ treatment of impoundments of jurisdictional waters (see Section III.F), which may alter the course or form of a water of the United States but maintains sufficient surface water connection to a traditional navigable water in a typical year. Some commenters requested clarification on how water diversions may affect the jurisdictional status of tributaries. A water diversion that completely reroutes a tributary through a tunnel would be considered an artificial feature that would not sever jurisdiction under this final rule. The tunnel itself is not a tributary under the rule, however, because it is not a surface water channel. This final rule clarifies that jurisdiction applies based on current flow classification in a typical year. When completing jurisdictional determinations in managed systems, just as in natural systems, the agencies will consider whether features meet the flow conditions of the ‘‘tributary’’ definition in a typical year. Managed systems are jurisdictional as long as they satisfy the definition of ‘‘tributary,’’ including the flow conditions. If a stream is ephemeral in a typical year due to managed water withdrawals, the feature is an excluded ephemeral stream. Tributaries that have been altered via water management systems, or whose morphology has been altered in some manner, maintain their tributary status as long as they are perennial or intermittent and contribute surface water flow to the territorial seas or a traditional navigable water in a typical year. Under the pre-existing regulatory regime (recodified in the 2019 Rule), the agencies conducted a significant nexus analysis for certain types of waters referred to as ‘‘non-relatively permanent waters,’’ which includes ephemeral features and some intermittent streams. See Rapanos Guidance at 7 (‘‘‘[R]elatively permanent’ waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally. However, CWA jurisdiction over these waters will be evaluated under the significant nexus standard[.]’’). The definition of ‘‘tributary’’ in the final rule replaces existing procedures that utilize a case-specific ‘‘significant nexus’’ analyses of the relationship between a particular stream and downstream traditional navigable water. The agencies are eliminating this case- specific ‘‘significant nexus’’ analysis by providing a clear definition of ‘‘tributary’’ that is easier to implement. Justice Kennedy’s ‘‘significant nexus’’ test for wetlands adjacent to nonnavigable tributaries was needed only ‘‘absent more specific regulations,’’ Rapanos, 547 U.S. at 782, because ‘‘the breadth of [the Corps’ existing tributary] standard . . . seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in- fact water and carrying only minor water volumes towards it’’ and thus ‘‘precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood.’’ Id. at 781. In light of the ‘‘more specific [tributary] regulations’’ finalized in this rule, the agencies are eliminating the case-specific significant nexus review through categorical treatment, as ‘‘waters of the United States,’’ of all tributaries with perennial or intermittent flow that contribute surface water flow to downstream navigable-in- fact waters in a typical year. See id. at 780–81 (Kennedy, J., concurring in the judgment) (‘‘Through regulations or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.’’) (emphasis added). In doing so, the agencies believe they avoid interpretations of the CWA that raise significant constitutional questions. See id. at 738 (plurality) (‘‘Even if the term ‘the waters of the United States’ were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.’’). The agencies recognize that this is a departure from prior positions of the Federal government. The agencies also recognize that prior to the finalization of this rule, some courts applied the significant nexus standard articulated in Justice Kennedy’s opinion as the exclusive test of CWA jurisdiction over certain waters. As described in detail in Section II.E, the agencies have analyzed the text, structure, and legislative history of the CWA in light of Supreme Court guidance and conclude that this final rule incorporates important aspects of Justice Kennedy’s opinion, together with those of the plurality, to craft a clear and implementable definition that stays within their statutory and constitutional authorities. The final ‘‘tributary’’ definition contains no flow volume requirement, but only a requirement of perennial or intermittent flow and a contribution of surface water flow to a paragraph (a)(1) water in a typical year. The agencies believe that establishing a specific flow volume requirement for all tributaries is inappropriate, given the wide spatial and temporal variability of flow volume in rivers and streams across the country. While the definition may in certain instances assert jurisdiction over bodies of water contributing ‘‘the merest trickle,’’ 547 U.S. at 769 (Kennedy, J., concurring in the judgment), to a traditional navigable water during certain times of the year, the agencies conclude that such bodies are ‘‘‘waters’ in the ordinary sense of containing a relatively permanent flow’’ regardless of flow volume. Id. at 757 (Scalia, J., plurality). Some commenters suggested that using stream flow volumes rather than flow duration classifications for the definition of ‘‘tributary’’ would be easier to implement. The agencies disagree with this suggestion based on their experience. In 1977, the Corps proposed to use flow volumes (i.e., five cubic feet per second) to define ‘‘headwaters’’ in the definition of ‘‘waters of the United States,’’ and instead finalized the use of flow volumes for implementation of their general permit program. 42 FR 37129 (July 19, 1977). Stream flow volume is challenging to measure directly, in particular in an intermittent stream where flow is not always present and may require multiple field-based measurements that can make implementation inefficient and result in delays in making a jurisdictional determination. While flow duration classifications may also require field measurements, in certain instances VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22292 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations remote tools, such as remote sensing and aerial photography, can be used to observe presence or absence of flow and identify flow duration classifications, but cannot also assess flow volumes. In addition, the agencies have not identified a reasonable or appropriate rationale or justification for specific flow volumes that should establish jurisdiction given the broad nationwide applicability of the final rule. A few commenters requested a flow duration metric (e.g., 30, 90, or 185 days) to determine a jurisdictional tributary. Several commenters recommended the agencies adopt a definition of ‘‘intermittent’’ that contains the requirement of continuous flow for a specific duration, such as ‘‘at least one month of the calendar year’’ to provide certainty for determining flow classification. See e.g., 30 CFR 710.5 (definition of ‘‘intermittent’’ used in a U.S. Department of Interior regulation). Several commenters also recommended a regionalized approach to flow classification. The agencies have finalized an approach that considers streamflow duration in the flow classification definitions generally (e.g., ‘‘flowing continuously year-round,’’ ‘‘flowing continuously during certain times of the year and more than in direct response to precipitation,’’ and ‘‘flowing . . . only in response to precipitation’’) but without specifying an exact number of days of flow. The agencies are not providing a specific duration (e.g., the number of days, weeks, or months) of surface flow that constitutes intermittent flow, as the time period that encompasses intermittent flow can vary widely across the country based upon climate, hydrology, topography, soils, and other conditions. The ‘‘typical year’’ construct captures that variability, however, and provides for regional and local variations in the actual application of a uniform nationwide definition. The agencies acknowledge that an approach utilizing a specific duration would provide for enhanced national consistency, but it would also undermine the regionalized implementation of intermittent tributaries as provided for under this final rule. Some commenters cautioned the agencies against treating intermittent streams similarly across the country based on a prescriptive flow duration metric, as intermittent streams in the arid West are fundamentally different from intermittent streams in the Southeast, for example. A specific duration requirement would also be challenging to implement—even landowners familiar with their properties may not know the number of days a stream flows per year. Other commenters recommended the use of physical indicators of flow, such as ordinary high water mark and bed and banks, which could be regionalized for a field-based approach. These commenters stated that physical indicators can be more readily observable and can indicate flows of sufficient magnitude and duration to qualify as a tributary. The agencies disagree with these comments and conclude that physical indicators of flow, absent verification of the actual occurrence of flow, may not accurately represent the flow classifications required for tributaries under this rule. See, e.g., 547 U.S at 781 (Kennedy, J., concurring in the judgment) (expressing concerns that a the Corps’ existing tributary standard based, in part, on the ‘‘possess[ing]’’ of ‘‘an ordinary high water mark, defined as a ‘line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics,’ . . . seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it’’). For example, ephemeral streams can have an ordinary high water mark and bed and banks, which would not allow for the agencies or the public to distinguish between a non- jurisdictional ephemeral stream and a jurisdictional intermittent or perennial tributary using those physical indicators. Ephemeral streams in the arid West, for example, may have ordinary high water marks that were incised years ago following a single large storm. It makes more practical sense for a feature to be first assessed as a tributary, after which the lateral extent of that tributary can be identified using the ordinary high water mark. Physical indicators, however, may be one line of evidence the agencies could use to evaluate whether a stream meets the flow requirements to be a tributary under this definition. These indicators could be regionalized to obtain a practical field-based approach for identifying the flow classification of a stream which is a required component of identifying a tributary. Such physical indicators are further discussed in Section III.D.3 of this notice. In addition, the agencies cannot always rely on field-based physical indicator methods—for example, when evaluating a site at a time that does not meet the definition of ‘‘typical year.’’ In some instances, completing a desktop determination with remote tools may supplement or substitute for field-based indicators. 3. How will the agencies implement the final rule? The agencies will employ many different methods and tools to identify and determine whether a feature meets the definition of ‘‘tributary’’ under this final rule. A few commenters recommended that the agencies identify a variety of methods which may be employed to identify flow classifications, and that such methods involve tools readily available to a typical landowner. Methods and tools used by the agencies are generally available for the public to use so that they can make an informed decision about how to proceed with requests for jurisdictional determinations or authorization for activities under the CWA. The agencies believe that there are numerous cases where an informed decision can save valuable time and money by avoiding unnecessary jurisdictional determination requests. This can be done, for example, where landowners are familiar with the water features on their property and know that they only flow in response to a rain event, or that an isolated wetland in the middle of a ranch is not flooded by a nearby perennial river in a typical year. However, in cases where a member of the general public makes an informed decision to not request a jurisdictional determination and discharges pollutants into a waterbody that is, in fact, jurisdictional without required permits, the individual could be subject to the agencies’ enforcement authorities under the CWA. One of the first steps in determining whether a feature is a tributary is to identify relevant features on the landscape, such as rivers, streams, or similar naturally occurring surface water channels, as well as ditches. Field work to include direct observation and other reliable methods can indicate the existence of a tributary, such as stream gage data, elevation data, historic or current water flow records, flood predictions, statistical evidence, aerial imagery, and USGS maps. Another step in determining whether a feature is a tributary is to identify whether the feature contributes surface water flow to a paragraph (a)(1) water either directly or through one or more paragraph (a)(2) through (4) waters in a typical year. The agencies intend to use several sources to identify the flow path of a potential tributary to determine whether surface water flow is being contributed eventually to a paragraph (a)(1) water. The agencies can use USGS maps, State and local knowledge or maps, aerial photography, or other remote sensing information so long as VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22293 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 46 Under the Rapanos Guidance, the agencies applied a different jurisdictional test based upon a tributary’s flow regime. ‘‘The agencies will assert jurisdiction over relatively permanent non- navigable tributaries of traditional navigable waters without a legal obligation to make a significant nexus finding.’’ Rapanos Guidance at 7. Relatively permanent tributaries were described in the guidance as tributaries that ‘‘typically flow year- round or have continuous flow at least seasonally (e.g., typically three months)[.]’’ Id. at 1. At the same time, the guidance established that ‘‘‘relatively permanent’ waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do not typically flow year-round or have continuous flow at least seasonally.... CWA jurisdiction over these waters will be evaluated under the significant nexus [test.]’’ Id. at 7. The agencies also note that in June 2009, the Corps added a classification code ‘‘R6,’’ entitled ‘‘Riverine Ephemeral,’’ to identify ephemeral aquatic resources. The Corps created the ‘‘R6’’ code to provide clarity to field staff when identifying ephemeral waters for entry into the ORM2 database. See https:// www.spa.usace.army.mil/Portals/16/docs/ civilworks/regulatory/Bulk%20Upload/ Bulk%20Data%20Cowardin.pdf. the tools the agencies use have been verified to be reliable (see, e.g., Section IV of this notice regarding limitations of existing aquatic resource mapping datasets) to assess a feature’s flow path. The agencies can also use available models, including models developed by Federal, State, tribal and local governments, academia, and the regulated community. One such model includes the ‘‘Flow (Raindrop) Path’’ GIS tool which allows the user to click a point on a map to signify a falling raindrop on that point, after which a flow path is drawn to estimate where the raindrop may flow, eventually making its way to the ocean if the tributary network allows for it (https:// streamstats.usgs.gov/ss/). The StreamStats tool may potentially be used to identify the flow path from the subject water to the downstream paragraph (a)(1) water using the ‘‘Flow (Raindrop) Path’’ component of the tool. These tools could be used in conjunction with field observations, data, and other desktop tools to evaluate whether a specific point on a potential tributary may have a surface water connection to a downstream paragraph (a)(1) water in a typical year. In addition to identifying the presence of rivers, streams, or similar naturally occurring surface water channels which contribute surface water flow to a downstream paragraph (a)(1) water, the agencies must assess the feature’s flow classification. The agencies have substantial experience using visual hydrologic observations, field data and indicators, and remote tools to determine flow classification. Commenters expressed several key concerns about the flow classification concept. Some commenters noted that there is no established or universally accepted methodology to identify flow classification. The agencies agree that there is no universally accepted methodology; however, scientists, environmental consultants, and other water resource professionals, including agency staff, have used the terms ‘‘perennial,’’ ‘‘intermittent,’’ and ‘‘ephemeral’’ for decades in the field. Indeed, the agencies have used these terms to evaluate the jurisdictional status of waters for more than a decade, in accordance with the 2008 Rapanos Guidance.46 More recently, the Corps has applied these terms in its Nationwide Permit Program (NWP). See 82 FR 1860, 2005 (January 6, 2017). The terms are used in the NWP in a manner similar to the definitions in this final rule, but in the NWP the terms adhere more closely to the generally-accepted scientific definitions that focus on groundwater rising above the bed of the stream channel as differentiating between ephemeral features and perennial and intermittent waters. See id. at 2006. For the reasons explained in Section III.A.2, however, the agencies have finalized definitions for the three flow classification terms in this rule that better align with the scope of CWA jurisdiction, while improving clarity of the rule and transparency of the agencies’ implementation. These flow classification terms can be implemented using readily available resources in addition to visual assessments. Some commenters expressed concern that the information needed to determine flow classification would require a high burden of proof and would result in significantly longer processing times for jurisdictional determinations. The agencies will continue to bear the burden of proof for determinations and, as noted above, have already implemented a version of the flow classification concept under the Rapanos Guidance and the Corps’ NWP. The agencies disagree with the suggestion that the use of these flow classifications will result in a lengthier process for jurisdictional determinations. With the clear and categorical definition as to the scope of CWA jurisdiction included in this final rule, the elimination of the significant nexus determination requirement for tributaries, the use of existing tools, and the development of new tools, jurisdictional determinations for tributaries should be more efficient under this final rule than under prior regulatory regimes. Some commenters also noted that the data and resources identified in the preamble to the proposed rule to evaluate flow classification have limited availability. The agencies agree that some data and resources have significant limitations and other national-level tools and methods may not be readily available or accurate for use in many areas of the country, including in rural or remote areas and in heavily modified systems. The agencies will continue to rely on local knowledge, information provided by the landowner, and local, State, and tribal agencies, and a variety of additional tools and resources to evaluate flow classification in such systems. The final rule language on flow classifications allows for consistent implementation approaches for modified systems and more natural systems. Visual observations of surface hydrology are a useful primary method to identify flow classifications. The agencies expect that landowners will often have sufficient knowledge to understand how water moves through their properties, although visual observations could be conducted by Federal, State, tribal and local agencies, and other public or private organizations, as appropriate. The agencies also recognize that a single visual observation may not always be sufficient to accurately determine flow classification, and visual observations should generally be combined with precipitation and other climate data and expected flow seasonality to accurately determine flow classification. For example, observing flow directly after a large rainfall or observing no flow during a dry season may not be good indicators of a stream’s typical flow classification. In addition to visual observations of surface hydrology, the agencies may use field-based indicators and tools as another line of evidence to determine flow classification. Some commenters recommended using local flow data collected by government agencies, where available, and the agencies acknowledge that this could be a useful source of data. The agencies have also used methods such as trapezoidal flumes and pressure transducers for measuring surface flow. During the public comment period, many commenters mentioned the availability of existing rapid, field-based, streamflow duration assessment methods that have been developed for use across various States or geographic regions and suggested that these existing methods could be used to distinguish between streams with perennial, intermittent, and ephemeral flow classifications. Many commenters also recommended that the agencies develop VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22294 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 47 As described in the RPA for the final rule, the agencies note that NHD at High Resolution does not distinguish intermittent from ephemeral features in most parts of the country and may not accurately identify on-the-ground flow conditions. similar methods for use across the United States, with input from the public and the scientific community. The agencies recognize that some States have developed streamflow duration assessment methods (SDAMs) that use physical and biological field indicators, such as the presence of hydrophytic vegetation and benthic macroinvertebrates, to determine the flow duration class of a stream reach as perennial, intermittent, or ephemeral (e.g., the Streamflow Methodology for Identification of Intermittent and Perennial Streams and Their Origins, developed by the North Carolina Division of Water Quality, available at http://portal.ncdenr.org/c/document_ library/get_file?uuid=0ddc6ea1-d736- 4b55-8e50- 169a4476de96&groupId=38364). The EPA, the Corps, and the State of Oregon also previously developed a regionalized SDAM that has been validated for use throughout the Pacific Northwest since 2015 (available at http://www.epa.gov/measurements/ streamflow-duration-assessment- method-pacific-northwest). Because SDAMs use indicators that are robust to seasonal and short-term climatic variability, these methods can be applied in a single site visit to distinguish streamflow duration when a channel is flowing or in the absence of flow. The agencies agree with commenters that these methods are useful and practical tools that could be used to help inform timely and predictable jurisdictional determinations, for implementation of the final ‘‘tributary’’ definition, in the States and regions where previously developed SDAMs are available. The agencies also agree with commenters that developing similar methods for use across the United States would promote consistent implementation of the final tributary definition and note that the agencies are currently working to develop regionally-specific SDAMs for nationwide coverage. The agencies believe that developing regionally- specific SDAMs is important to account for the differences in climate, geology, and topography that can influence relationships between physical and biological indicators and streamflow permanence. A variety of remote, desktop tools could be used to determine flow classification of potential tributaries, particularly when coupled with site specific information. In meetings with stakeholders, some local government officials recommended using local maps developed by government agencies, where available, as opposed to national maps, noting for example that the National Hydrography Dataset (NHD) has been shown to overestimate flow in certain areas. The agencies will assess flow classification using a compilation of the best available mapping sources, which may include the NHD 47 or local maps, as well as other remote tools such as photographs, StreamStats by the USGS (available at https:// streamstats.usgs.gov/ss/), Probability of Streamflow Permanence (PROSPER) by the USGS (available at https:// www.usgs.gov/centers/wy-mt-water/ science/probability-streamflow- permanence-prosper), Natural Resources Conservation Service (NRCS) hydrologic tools and soil maps, desktop tools that provide for the hydrologic estimation of a discharge sufficient to generate intermittent or perennial flow (e.g., a regional regression analysis or hydrologic modeling), USGS topographic data, or modeling tools using drainage area, precipitation data, climate, topography, land use, vegetation cover, geology, and/or other publicly available information. The agencies will continue to rely on field observations and field data to verify desktop assessments as appropriate, and will also consider data and tools developed by academia, the regulated community, and other stakeholders. Ultimately, multiple data points and multiple sources of information should be used to determine flow classification. For example, a ‘‘blue line stream’’ on a USGS topographic map and/or mapped in the NHD may indicate a potential tributary. Combining this information with stream order can further inform determinations of flow classification, as higher order streams may be more likely to exhibit perennial or intermittent flow compared to lower order streams, though some headwater streams are perennial or intermittent. The agencies could further determine whether flow data, field indicators, or visual observations of surface hydrology are available to confirm a stream’s flow classification. Field-based and remote information may vary in availability and accuracy in different parts of the country, so care will be taken to evaluate additional information prior to reasonably determining the presence or absence of a tributary. Also, the agencies will continue to use the specific, validated tools developed by States to identify stream flow classifications. As noted previously, the agencies will use best professional judgment and various tools to identify where the change in flow classification occurs (e.g., from intermittent to ephemeral and vice-versa). The tools described above can assist in the identification of that transition in flow classification and therefore the delineation of a reach as used in this final rule. The primary distinction necessary under this rule is the identification of when a perennial or intermittent reach transitions to an ephemeral reach and vice-versa. The agencies acknowledge that there are spatial and temporal variations in stream attributes such that there may not always be a distinct point demarcating the flow classification changes. For example, a single distinct point may occur at the confluence of two ephemeral streams, which become intermittent at the confluence. However, in some situations between stream confluences, there may be a transition zone where the flow classification change fluctuates within that zone throughout a typical year. The agencies will gather information from upstream and downstream of the transition zone as far as needed to get an accurate assessment of the conditions on the ground when it may be necessary for a decision point. This transition zone where the change in flow classification occurs will be evaluated by the agencies using the tools described above, as well as best professional judgment, to identify the most appropriate point at which to distinguish flow classifications. In addition to determining the flow classification of a potential tributary, the agencies will also determine whether climatic conditions are typical to determine whether the water feature meets the definition of ‘‘tributary’’ under the final rule. As discussed in Section III.A.1, the final rule defines the term ‘‘typical year’’ to mean ‘‘when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.’’ The agencies will use readily available climatic data and tools to evaluate normal precipitation and climatic conditions for the region at issue and will ensure that the time period of evaluation is representative of the normal characteristics of the subject waterbody (i.e., it is neither too wet nor too dry). A detailed discussed of how the agencies intend to implement this definition is provided in Section III.A.1. In utilizing the data sources described above and determining the flow classifications of tributaries under typical climatic conditions, the agencies recognize the need to consider seasonality and timing of tributary VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22295 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 48 The Corps’ ordinary high water mark manuals are available at: https://www.erdc.usace.army.mil/ Media/Fact-Sheets/Fact-Sheet-Article-View/Article/ 486085/ordinary-high-water-mark-ohwm-research- development-and-training/. Regulatory Guidance Letter 05–05 is available at: https:// usace.contentdm.oclc.org/utils/getfile/collection/ p16021coll9/id/1253. flows. For instance, in some geographic areas, intermittent streams may typically flow only at certain times, such as during seasonally wet conditions. Thus, the agencies would not expect to observe streamflow in seasonally dry conditions, even if precipitation during those dry conditions is considered typical for the dates of interest. The agencies may need to use the multiple tools described above to determine the flow classification for a tributary that is not flowing because of seasonally dry conditions, including remote- and field- based hydrologic and non-hydrologic indicators of the flow classification that would occur during seasonally wet conditions. For example, remote indicators might include a series of aerial and satellite images, spanning multiple years and taken under normal climatic conditions, the majority of which depict water flowing in the channel. In the field, evidence of recent flow can be observed through the presence of multiple or abundant signs of certain ordinary high water mark indicators for the region, such as the presence of point bars, concentrations of drift deposits, or the destruction of terrestrial vegetation. Furthermore, certain wetland hydrology indicators can help clarify whether water is present in the area only immediately following precipitation events, or whether longer-term saturation has likely occurred. An example of an indicator is the presence of oxidized rhizospheres along living root channels, which can take four to eight weeks of continuous saturation to form. This indicator alone cannot be conclusive of water flowing above the surface, but multiple positive indicators could provide an increased degree of confidence in these situations. Conversely, the agencies may observe flow during wetter than normal precipitation conditions. In this case, the agencies can use other lines of evidence, including remote- and field- based hydrologic and non-hydrologic indicators of flow classification as appropriate. Streams that contain flowing water during wetter than normal climatic conditions, but which lack an ordinary high water mark or hydrology indicators may be less likely to flow during normal climatic conditions. This assessment is further supported if the majority of wet season aerial and satellite images taken during normal climatic conditions depict a dry channel. In addition, a landowner’s specific information indicating whether a water feature meets the definition of a ‘‘tributary’’ under ‘‘typical year’’ conditions may also aid in determining flow classification. In addition to requesting clarification about when a surface water feature meets the definition of ‘‘tributary,’’ some commenters also stated that it would be helpful to incorporate the lateral limits of jurisdiction directly into the ‘‘tributary’’ definition and questioned how such limits would be determined. In addition, some commenters expressed concern regarding the status of braided rivers that migrate and have multiple channels where the jurisdictional limits would be identified. The lateral limits of jurisdiction for tributaries extends to the ordinary high water mark, as indicated by the physical characteristics provided in the definition. Consistent with existing practice, the agencies intend to continue to use the Corps’ ordinary high water mark manuals, as well as Regulatory Guidance Letter 05–05, when making ordinary high water mark determinations.48 The outer limits of a braided channel may be used to identify the lateral extent when appropriate, which may encompass multiple low- flow channels and the migratory islands that separate them. Adding the ordinary high water mark concept to the definition of ‘‘tributary’’ is unnecessary because it is already located in the Corps’ regulations at 33 CFR 328.4 to identify the lateral extent of jurisdiction. The agencies are finalizing the rule with the definition of ‘‘ordinary high water mark’’ as proposed, however, to improve consistency between the corresponding regulations and also because the term ‘‘ordinary high water mark’’ is used in the final rule’s definition of ‘‘upland.’’ E. Ditches 1. What are the agencies finalizing? The regulatory status of ditches has long created confusion for farmers, ranchers, irrigation districts, municipalities, water supply and stormwater management agencies, and the transportation sector, among others. To address this confusion, the agencies proposed to add a new category to the definition of ‘‘waters of the United States’’ for jurisdictional ditches and similar artificial features. The agencies proposed to include in that category: (1) Ditches that are traditional navigable waters or that are subject to the ebb and flow of the tide (e.g., paragraph (a)(1) waters); (2) ditches that are constructed in tributaries or that relocate or alter tributaries as long as the ditch satisfies the flow conditions of the tributary definition; and (3) ditches constructed in adjacent wetlands as long as the ditch likewise satisfies the conditions of the tributary definition. 84 FR 4203. All other ditches were excluded from CWA jurisdiction under the proposal. Many commenters did not find that the separate jurisdictional category of ‘‘ditches’’ provided the regulatory clarity and predictability that the agencies had sought. They instead stated that the separate category created confusion. Other commenters said that the proposed separate category provided additional clarity, while others argued that all ditches should be excluded. Other commenters stated that the proposal was too limiting and should include more ditches as jurisdictional, including any ditch that contributes perennial, intermittent, or ephemeral flow to other ‘‘waters of the United States.’’ In response to these diverse comments, the final rule does not include the separate category of ‘‘ditches’’ under paragraph (a)(3) as proposed and instead incorporates the elements of the proposal into the ‘‘tributary’’ category, with some additional clarifying edits. Ditches that are paragraph (a)(1) waters do not need to be identified in another jurisdictional category, so that aspect of the proposal has been eliminated as unnecessary and redundant. Ditches that are constructed in or that relocate a tributary are included in the final rule as tributaries, as long as the ditch satisfies the flow conditions of the ‘‘tributary’’ definition. The same is true for ditches that are constructed in adjacent wetlands. The agencies did not retain the term ‘‘alter’’ from the proposed rule given the potential confusion associated with the use of that term. As some commenters noted, most, if not all, ditches may have some effect on and therefore may ‘‘alter’’ a tributary or some portion of the tributary system. As described throughout this notice, the CWA does not authorize the agencies to regulate all waters, nor does it authorize the agencies to regulate all ditches that exist across the landscape to assist in water management activities. The agencies conclude that ditches that are ‘‘constructed in’’ or that ‘‘relocate’’ a tributary, and that satisfy the flow conditions of the ‘‘tributary’’ definition, are appropriately within the authority granted to the agencies under the CWA, consistent with the legal principles outlined in Section II.E. The regulation VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22296 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 49 The Corps also moved the ditch exclusion from rule text to preamble language in 1986 but stated that this was not a substantive change and that jurisdiction was not expanded. 51 FR 41206, 41216–17 (November 13, 1986). 50 The agencies also note that Congress exempted the discharge of irrigation return flows into waters of the United States from the section 402 permit program. 33 U.S.C. 1342(l). This exemption potentially would not be needed if agricultural drainage ditches carrying irrigation return flow were themselves waters of the United States, as the entry point of the irrigation return flow into the drainage ditch might then lack the requisite point source discharging mechanism given the diffuse overland flow entry point from the field to ditch in most circumstances. and management of all other ditches is appropriately left to States and Tribes as part of their primary authority over land and water resources within their border. See 33 U.S.C. 1251(b), 1370. The agencies consider it to be clearer to include in the definition of ‘‘tributary’’ that the alteration of a tributary does not modify its jurisdictional status as a tributary as long as it continues to meet the flow conditions of the definition, rather than to classify the alteration of a tributary as a ditch. This is also consistent with longstanding agency practice. The agencies have modified the exclusion for ditches in paragraph (b)(5) to reflect these changes. The agencies also recognize that in certain circumstances, ditches that are constructed in adjacent wetlands that lack sufficient flow to be considered tributaries under this final rule may develop wetland characteristics if not maintained. As discussed below, in limited circumstances, those wetlands may be treated as adjacent wetlands, subject to the permitting exemptions in 33 U.S.C. 1344(f). All other ditches are excluded under the final rule. The agencies believe that this approach to ditches best addresses the comments received and provides clarity and regulatory certainty to determine when a ditch may be a jurisdictional water and when a ditch may be excluded, consistent with the agencies’ authority under the CWA. Finally, as discussed in Section III.A.3, non- jurisdictional ditches under this final rule may be capable of conveying channelized surface water flow between upstream relatively permanent jurisdictional waters and downstream jurisdictional waters in a typical year. In this example, the ditch itself, however, would remain non-jurisdictional. 2. Summary of Final Rule Rationale and Public Comment During the 1970s, the Corps interpreted its authorities under the CWA as excluding drainage and irrigation ditches from the definition of ‘‘waters of the United States.’’ See, e.g., 40 FR 31320, 31321 (July 25, 1975) (‘‘Drainage and irrigation ditches have been excluded.’’). The ditch exclusion was expressly stated in regulatory text in the Corps’ 1977 regulations. 33 CFR 323.2(a)(3); 42 FR 37122, 37144 (July 19, 1977) (‘‘manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition’’). As the Corps explained in 1977: ‘‘nontidal drainage and irrigation ditches that feed into navigable waters will not be considered ‘waters of the United States’ under this definition. To the extent that these activities cause water quality problems, they will be handled under other programs of the FWPCA, including Section 208 and 402.’’ 42 FR at 37127 (July 19, 1977). Similar statements in preambles to the proposed rules from the early 1980s confirmed this interpretation: ‘‘man-made, non- tidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States.’’ 45 FR 62732, 62747 (September 19, 1980); see also 48 FR 21466, 21474 (May 12, 1983) (‘‘Waters of the United States do not include the following man-made waters: (1) Non-tidal drainage and irrigation ditches excavated on dry land, (2) Irrigated areas which would revert to upland if the irrigation ceased.’’). The general exclusion for non-tidal drainage and irrigation ditches excavated in dry land continued through 1986, although the Corps modified its earlier statements that year by noting in preamble text that ‘‘we generally do not consider’’ such features to be ‘‘waters of the United States,’’ and indicating that the agency would evaluate certain ditches on a case-by- case basis. 51 FR 41206, 41217 (November 13, 1986).49 The EPA also included similar language in a Federal Register notice in 1988. 53 FR 20764 (June 6, 1988). The Corps further clarified the regulation of ditches in its nationwide permit regulation in March 2000, stating that ‘‘non-tidal drainage ditches are waters of the United States if they extend the [ordinary high water mark] of an existing water of the United States.’’ 65 FR 12818, 12823 (March 9, 2000). In other words, if flow or flooding from a jurisdictional non-tidal river or stream inundated an upland ditch, the agencies would assert jurisdiction over that upland ditch because the ordinary high water mark of the river or stream extends into the ditch, and the agencies would then assert jurisdiction over the entire reach of that ditch. This final rule clarifies the regulatory status of ditches in a manner that is more consistent with the Corps’ regulations following the 1972 and 1977 CWA amendments, with some modifications to provide a clear definition that also falls within the scope of the agencies’ authority under the CWA. When Congress enacted the 1972 amendments, it specifically included ditches and related artificial features as ‘‘point sources,’’ declaring them to be ‘‘discernible, confined, and discrete conveyances . . . from which pollutants are or may be discharged.’’ Public Law 92–500, 86 Stat. 816, 887 (1972) codified at 33 U.S.C. 1362(14). Congress envisioned protecting the quality of the navigable waters, defined as ‘‘waters of the United States’’ at that time, by regulating the discharge of pollutants from conveyances like pipes, ditches, channels, tunnels and similar features into waters of the United States. Id. at 1362(12) (defining ‘‘discharge of pollutant’’ as ‘‘any addition of any pollutant to navigable waters from any point source’’). The agencies evaluated the treatment of ditches in the CWA and its legislative history to discern whether Congress intended ditches to be point sources, navigable waters, or both. For example, Congress exempted the discharge of dredged or fill material into waters of the United States when that discharge occurs as a result of the construction or maintenance of irrigation ditches, the maintenance of drainage ditches, or minor drainage associated with normal farming activities. 33 U.S.C. 1344(f)(1)(A), (C) (exempting such activities from sections 301, 402, and 404 of the Act). One possible interpretation of these exemptions is that they function as an implicit acknowledgement that there may be some irrigation or drainage ditches that are waters of the United States, thus the need to exempt common agricultural and related practices in those waters from CWA section 404 permitting. Another interpretation is that dredged or fill material or other pollutant discharges arising from such activities are not subject to federal permitting if those materials get washed down the ditch into a connected water of the United States. For irrigation ditches, which typically are constructed in upland but frequently must connect to a water of the United States to either capture or return flow, Congress exempted both the construction and maintenance of such facilities. 33 U.S.C. 1344(f)(1)(C); see also 33 U.S.C. 1362(14) (excluding agricultural stormwater discharges and irrigation return flows from the definition of ‘‘point source’’).50 The VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22297 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations construction activities performed in upland areas are beyond the reach of the CWA, but the permitting exemption applies to the diversion structures, weirs, headgates, and other related facilities that connect the irrigation ditches to jurisdictional waters. See, e.g., Corps, Regulatory Guidance Letter No. 07–02, at 1–2 (July 4, 2007). For drainage ditches, by contrast, the permitting exemption is limited to only maintenance of such ditches. 33 U.S.C. 1344(f)(1)(C). That is because a parallel exemption for construction would allow the drainage of wetlands subject to CWA jurisdiction without a permit. Congress’ intent to prevent such a result is evident in the ‘‘recapture’’ provision of 33 U.S.C. 1344(f)(2). See, e.g., Sen. Rpt. 95– 370, 95th Cong. 1st Sess., at 76–77 (July 19, 1977) (noting that exempted ‘‘activities should have no serious adverse impact on water quality if performed in a manner that will not impair the flow and circulation patterns and the chemical and biological characteristics of the affected waterbody’’ and noting that the ‘‘exemption for minor drainage does not apply to the drainage of swampland or other wetlands’’). In summary, Congress may have envisioned the interconnection between the irrigation and drainage ditches and down-gradient waters of the United States as creating the need for the section 404(f) permitting exemptions, not necessarily that those ditches themselves are waters of the United States. Or Congress could have envisioned that some drainage ditches constructed in jurisdictional wetlands become waters of the United States themselves and thus require section 404(f) permitting exemptions for maintenance work performed in them. The agencies have not been able to identify any legislative history that signals the clear intent of Congress on this complex topic, and commenters provided a diverse range of viewpoints that failed to provide a clarifying position. To resolve the ambiguity, the agencies are interpreting the statutory text in section 404(f) and its legislative history as an indication that Congress may have intended, in certain limited circumstances, that ditches constructed in jurisdictional wetlands could become jurisdictional waters themselves. The agencies believe that the final rule formulation adheres more closely to the language of the statute and the positions articulated by the plurality opinion in Rapanos. See, e.g., 547 U.S. at 735–36 and n.7. Many commenters requested the agencies clarify that a water of the United States and point source are mutually exclusive. Some commenters expressed concern about features which may be considered point sources rather than waters of the United States under the proposed rule, and whether such features would require section 402 permits to convey pollutants downstream. Other commenters stated that permit requirements may need to be modified by sampling at the downstream end of the ditch to demonstrate that pollutants are being added to a water of the United States. The final rule does not make any changes to the agencies’ interpretation of the definition of ‘‘point source’’ in CWA section 502(14). The agencies believe that this final rule will help clarify whether a ditch is a water of the United States or a point source. Either it is a water of the United States that subjects a discharger to sections 402 and 404 permitting requirements for direct discharges into the ditch, or, if it is non- jurisdictional but conveys pollutants to downstream jurisdictional waters, it may be a point source that subjects a discharger into a ditch to section 402 permitting requirements. Both scenarios could also be subject to statutory exemptions that would obviate the need for a permit. In addition, if the ditch is a non-jurisdictional water that does not convey pollutants, it would not require a permit. The agencies recognize that a change in jurisdiction resulting from this rule may change the scope of application of the CWA regulatory programs to a particular water, but the longstanding approach that the agencies have taken to implementing and enforcing those programs would remain the same. If a CWA section 402 permit is not currently required for a discharge to a water, it is unlikely that this final rule will create a requirement for a new CWA permit. If a section 402 permit is currently required for a discharge to a water that is no longer jurisdictional under this final rule, that permit may no longer be required; it may still be required if the non-jurisdictional feature conveys a discharge of pollutants from a point source to a water of the United States; or it may still be required but the conditions associated with the permit may need to be modified, subject to applicable anti-backsliding permit requirements. This final rule includes the agencies’ longstanding interpretation that ditches that satisfy any of the conditions of a paragraph (a)(1) water are waters of the United States as paragraph (a)(1) waters. This also includes tidal ditches and ditches that transport goods and services in interstate and foreign commerce, as those ditches—more commonly referred to as ‘‘canals’’— provide important commercial navigation services to the nation and operate more like natural waters traditionally understood as navigable. See, e.g., id. at 736 n.7 (Scalia, J., plurality) (‘‘a permanently flooded man- made ditch used for navigation is normally described, not as a ‘ditch,’ but a ‘canal’’’). The Los Angeles River, for example, is a water of the United States (having been determined to be a traditional navigable water) and is not excluded under paragraph (b) even where it has been channelized or concreted. Other examples include the St. Lawrence Seaway, the Sturgeon Bay Ship Canal, and the Chesapeake and Delaware Canal. Under the final rule, the agencies limit the term ‘‘waters of the United States’’ to apply to clearly defined ditches and related features that meet the flow conditions of the ‘‘tributary’’ definition and are not otherwise excluded. The agencies include ditches in the ‘‘tributary’’ category that were constructed in or relocated a tributary and that continue to meet the flow conditions of the ‘‘tributary’’ definition. The final rule retains the agencies’ longstanding position that the alteration or relocation of a tributary does not modify the jurisdictional status of that water. Accordingly, ditches that relocate a tributary or are constructed in a tributary would be jurisdictional as tributaries. This provision is also consistent with the agencies’ longstanding, historic position that non- tidal ditches excavated in upland (and historically described as ‘‘dry land’’) are not jurisdictional. The agencies also include ditches in the ‘‘tributary’’ category that were constructed in a wetland that meets the definition of ‘‘adjacent wetland,’’ as long as the ditch also satisfies the flow conditions of the ‘‘tributary’’ definition. As discussed above, this approach aligns the rule with the CWA section 404(f) permitting exemption for the maintenance but not construction of drainage ditches, and the associated concern expressed during the legislative process for the 1977 CWA amendments related to draining swamps and wetlands. The provision is restricted to ditches that satisfy the flow conditions of the definition of ‘‘tributary,’’ which aligns the treatment of jurisdictional ditches with natural tributaries. See Section III.D for a broader discussion of the ‘‘tributary’’ category. Ditches used to drain surface and shallow subsurface water from cropland are a quintessential example of the interconnected relationship between land and water resource management, as VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22298 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations is the case for managing water resources in the Western United States, conveying irrigation water to and from fields, and managing surface water runoff from lands and roads following precipitation events—all activities that rely on ditches. See, e.g., FERC v. Mississippi, 456 U.S. 742, 767 n.30 (1982) (characterizing ‘‘regulation of land use [as] perhaps the quintessential state activity’’). The majority of these ditches will not be jurisdictional under the final rule. This final rule therefore effectuates the clear policy directive from Congress to preserve and protect the primary authority of States over land and water resources within their borders. See 33 U.S.C. 1251(b), 1370. Commenters had differing views on the jurisdictional status of ditches. Many commenters supported the agencies’ proposed approach to exclude many types of ditches, in particular those ditches constructed in upland which do not relocate a tributary. Some commenters stated that ditches should be jurisdictional even if constructed in upland if they have perennial flow. Some commenters recommended the agencies use the function of the ditch as the basis for an exclusion, such as all agricultural ditches, regardless of flow. The agencies disagree with the inclusion of upland ditches as jurisdictional waters aside from ditches that relocate a tributary or that meet the conditions of paragraph (a)(1). Such ditches are not part of the naturally occurring tributary system and are not something the agencies consider to be within their authority to regulate under the CWA. Upland ditches (other than those ditches that relocate a tributary or that meet the conditions of paragraph (a)(1)) do not fall under the ordinary meaning of the term ‘‘waters’’ within the scope of the CWA. In general, upland ditches were not jurisdictional for decades under the agencies’ previous definitions of ‘‘waters of the United States,’’ and they are not jurisdictional under this final rule (with the exceptions noted above). The agencies considered identifying and excluding ditches based on the function or purpose of the ditch but concluded that such an approach could result in the regulation of ditches with ephemeral flow and the exclusion of ditches which are essentially relocated tributaries. Both outcomes would be contrary to the agencies’ interpretation of the scope of CWA jurisdiction described throughout this notice. The agencies recognize that there have been questions over time about the jurisdictional status of ditches that are not maintained. Under this final rule, a ditch constructed in an adjacent wetland that contributes less than perennial or intermittent flow to a paragraph (a)(1) water in a typical year and that, due to lack of maintenance, gains wetland characteristics may be viewed as an adjacent wetland if it meets the definition of both ‘‘wetlands’’ under paragraph (c)(16) and ‘‘adjacent wetlands’’ under paragraph (c)(1). For example, a ditch constructed in an adjacent wetland that abuts a tributary may have portions that could be considered an adjacent wetland if the portions meet the definition of ‘‘wetland.’’ Only the portion or portions of the ditch that meets the definition of ‘‘adjacent wetland’’ are jurisdictional under this final rule. Other ditches not constructed in adjacent wetlands, or not otherwise covered by paragraph (a)(1) or (2), are excluded from jurisdiction under paragraph (b)(5). Such an approach aligns the treatment of ditches as tributaries and adjacent wetlands in this final rule with the section 404(f) permitting exemption for the maintenance but not construction of drainage ditches, and the associated concern expressed during the legislative process for the 1977 amendments related to draining swamps and wetlands. The agencies also note that the maintenance of certain jurisdictional ditches may occur without permitting under the section 404(f) exemptions of the CWA. Congress expressly excluded the construction and maintenance of irrigation ditches and the maintenance of drainage ditches (such as farm or roadside drainage ditches, many of which are also excluded from jurisdiction under this rule) from the permitting requirements of sections 301, 402, and 404. Discharges of dredged or fill material associated with those exempt activities into a ditch constructed in an adjacent wetland are therefore exempt from CWA permitting, even if those materials are transported down the ditch to other jurisdictional waters. The agencies note that section 404(f) has a recapture provision that is designed to override the permitting exemptions in section 404(f) if the otherwise exempt activity alters the previous use of a jurisdictional water through impairment of the circulation or flow of such waters or a reduction in the reach of such waters. 33 U.S.C. 1344(f)(2). The agencies are aware that in some circumstances, questions about the applicability of this recapture provision to ditches that develop wetland characteristics have created confusion. Some question whether the development of wetland characteristics in a ditch establishes a new use for the water feature such that the recapture provision overrides the ditch maintenance exemption. This interpretation would eliminate the maintenance exemption from performing the very purpose Congress intended—allowing the dredging of the bottom of the ditch to eliminate obstructions to flow, including vegetation, without the need for a permit. Many commenters noted that under the proposed rule, ditches must meet the definition of ‘‘tributary’’ to be jurisdictional, but because a ‘‘ditch’’ was defined as an artificial channel and a tributary was ‘‘naturally occurring,’’ a ditch could never meet the definition of ‘‘tributary.’’ The phrase ‘‘naturally occurring’’ does not exclude modified natural tributaries. The final rule clarifies that the ‘‘alteration’’ or ‘‘relocation’’ of a tributary does not modify its jurisdictional status as long as it originally occurred naturally and continues to satisfy the flow conditions of the definition. In addition, the agencies have clarified in the final rule that the definition of ‘‘tributary’’ includes ditches that are constructed in or relocate tributaries so long as the ditch satisfies the flow conditions of the definition. A ‘‘naturally occurring’’ tributary may be altered in such a manner that it no longer appears ‘‘natural’’ and instead has been constructed to become a channel that conveys water. One such example is the Los Angeles River. Such a feature may satisfy the definition of ‘‘ditch’’ in this rule, but it also satisfies the definition of ‘‘tributary,’’ which overrides the general exclusion for ditches in paragraph (b)(5) as clarified in that exclusion. A ditch that straightens a tributary is considered to be ‘‘constructed in’’ a tributary, and the ditch would be jurisdictional as a tributary so long as it continues to meet the flow conditions of the ‘‘tributary’’ definition. The proposed rule required ditches to satisfy the ‘‘conditions’’ of the ‘‘tributary’’ definition to be jurisdictional as tributaries; however, the agencies have clarified in the final rule that the ditches must satisfy the flow conditions of the ‘‘tributary’’ definition to be jurisdictional as a tributary. This requirement allows for such ditches to be artificial (as in not ‘‘naturally occurring’’) and still be considered tributaries. The agencies’ longstanding interpretation of the CWA is that tributaries that are altered or relocated tributaries are jurisdictional, and the agencies are not changing this interpretation. If a tributary is channelized, its bed and/or banks are VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22299 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations altered in some way, it is re-routed and entirely relocated, or its flow is modified through water diversions or through other means, then it remains jurisdictional under the final rule as long as it continues to satisfy the flow conditions in the definition of ‘‘tributary.’’ Finally, the agencies note that starting in the early 2000s, certain ditches (such as roadside and agricultural ditches) have been regarded by the Corps as jurisdictional if water from another jurisdictional water, such as a perennial river, overflows into a ditch and extends the ordinary high water mark of the contributing water into the ditch. The Corps has then asserted jurisdiction over the entire ‘‘reach’’ of the ditch regardless of the location of the ordinary high water mark in that portion of the ditch. Under this final rule, the agencies will continue the existing practice of regulating portions of otherwise non- jurisdictional ditches as waters of the United States based on the ordinary high water mark of the contributing water, but only up to the location of the ordinary high water mark, as mandated by existing Corps regulations. The agencies will not, however, assert jurisdiction over the entire ‘‘reach’’ of the ditch regardless of the location of the ordinary high water mark in that portion of the ditch. Those regulations establish the limits of jurisdiction of non-tidal waters of the United States as extending to the ordinary high water mark and not beyond. See 33 CFR 328.4(c). The agencies note that continuing the practice of regulating portions of otherwise non-jurisdictional ditches based on the ordinary high water mark of contributing down- gradient waters will maintain better alignment with the rule’s treatment of ditches subject to the ebb and flow of the tide as jurisdictional up to the tidal influence. It also provides some jurisdictional commonality with the treatment of certain lakes, ponds, and impoundments and adjacent wetlands as jurisdictional based on inundation by flooding from other jurisdictional waters. 3. How will the agencies implement the final rule? The agencies have determined that in order to be jurisdictional under this final rule, a ditch or other similar artificial feature would first need to meet the definition of ‘‘ditch’’ (i.e., a constructed or excavated channel used to convey water). Once a feature has been determined to meet the definition of ‘‘ditch,’’ a ditch would be considered a tributary where the ditch relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of the ‘‘tributary’’ definition. The phrase ‘‘constructed in an adjacent wetland’’ refers to ditches originating in or constructed entirely within an adjacent wetland. The phrase also includes ditches that are constructed through adjacent wetlands, but jurisdiction over those ditches only includes those portions in adjacent wetlands and downstream to other jurisdictional waters, as long as those portions satisfy the flow conditions of paragraph (c)(12). Jurisdiction does not extend to upland portions of the ditch prior to entry into an adjacent wetland. Consistent with the exclusion in paragraph (b)(5), a ditch or portions thereof may also be considered an adjacent wetland where it was constructed in an adjacent wetland and the portion in that wetland meets the conditions of paragraph (c)(1). If ditches were tributaries prior to their construction and continue to meet the flow conditions of the ‘‘tributary’’ definition after construction, they are jurisdictional as tributaries under the final rule. The burden of proof lies with the agencies to demonstrate that a ditch relocated a tributary or was constructed in a tributary or an adjacent wetland. For example, if the agencies are not sure whether a ditch was constructed in a tributary given the physical appearance and functionality of the current ditch, the agencies will review the available evidence to attempt to discern when the ditch was constructed and the nature of the landscape before and after construction. If the evidence does not demonstrate that the ditch was located in a natural waterway, the ditch will be non-jurisdictional under this rule. If the evidence suggests that the ditch may have been constructed in a natural waterway, the agencies will review the available evidence to attempt to discern whether that natural waterway would qualify as a tributary under this final rule. Absent such evidence, the agencies will conclude that the ditch is non- jurisdictional. The same methods above for ditches constructed in a tributary apply when determining the jurisdictional status of a ditch constructed in an adjacent wetland. Note that under this final rule, a ditch cannot render an otherwise isolated wetland an ‘‘adjacent wetland’’ and thus jurisdictional on that basis, unless the ditch itself is a tributary. See Section III.G for further discussion regarding the jurisdictional status of wetlands under this final rule. Many commenters noted that historic conditions at the time of ditch construction could be difficult to identify, and some commenters requested more specific guidance and standards of evidence which would be used by the agencies. Along with field data and current information on the subject water, historic tools and resources may be used to determine the presence of a tributary or adjacent wetland at the time of ditch construction, and several sources of information may be required to make such determination. Information sources may include historic and current topographic maps, historic and recent aerial photographs, local and state records and surface water management plans, agricultural records, street maintenance data, precipitation records, historic permitting and jurisdictional determination records, certain hydrogeomorphological or soil indicators, wetlands and conservation programs and plans, and functional assessments and monitoring efforts. For example, when a USGS topographic map displays a tributary located upstream and downstream of a ditch, this may indicate that the ditch was constructed in or relocated a tributary. As another example, an NRCS soil survey displaying the presence of specific soil series which are linear in nature and generally parallel to a potential ditch may be indicative of alluvial deposits formed by a tributary in which the ditch was constructed. In addition, high-resolution aerial photographs may be used to identify whether there are or were characteristics of a tributary upstream or downstream of a ditch, indicating that a ditch may have been constructed in or relocated a tributary. In some cases, stream channel morphology is visible on the aerial photograph along with visible persistent water (e.g., multiple dates of aerial photography showing visible water) providing evidence of the flow classification necessary to identify a tributary under this rule at the time of ditch construction. However, characteristics of tributaries may not be visible in aerial photographs taken in areas with high shrub or tree cover, in which case aerial photographs or satellite imagery taken during ‘‘leaf off’’ may provide the most beneficial information. The burden of proof is on the agencies to determine the historic status of the ditch construction, and if evidence does not show that the ditch relocated a tributary, was constructed in a tributary, or was constructed in an adjacent wetland, then a determination would be made that the ditch is not jurisdictional under this final rule. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22300 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations F. Lakes and Ponds, and Impoundments of Jurisdictional Waters 1. What are the agencies finalizing? The final rule includes a category of ‘‘waters of the United States’’ that combines lakes, ponds, and impoundments of jurisdictional waters into a single category. A lake, pond, or impoundment of a jurisdictional water meets the definition of ‘‘waters of the United States’’ if it (1) satisfies any of the conditions in paragraph (a)(1), i.e., it is a traditional navigable water like Lake Michigan or Lake Mead; (2) contributes surface water flow to the territorial seas or a traditional navigable water in a typical year either directly or through one or more jurisdictional waters; or (3) is inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. A lake, pond, or impoundment of jurisdictional waters does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The agencies had proposed to include two separate categories for lakes, ponds, and impoundments of jurisdictional waters, one for jurisdictional lakes and ponds and another for jurisdictional impoundments. The proposal followed the historic treatment of jurisdictional impoundments in treating them separately as ‘‘waters of the United States.’’ For lakes and ponds, the agencies proposed including them as a separate waterbody-specific category for the first time, more clearly tethering jurisdiction over those features to the text of the statute and applicable Supreme Court guidance. The agencies received a wide range of public comments on the proposed approach. Many commenters expressed support for including lakes and ponds as a separate category, while others also supported retaining separate treatment for impoundments of jurisdictional waters. Other commenters suggested that because lakes, ponds, and impoundments of jurisdictional waters are functionally similar they should be treated as a combined category. Some commenters stated that the proposal excluded too many lakes and ponds and said that the CWA should apply to such features regardless of their hydrologic surface connection to traditional navigable waters. Others argued that the proposal asserted jurisdiction over too many lakes and ponds. Some commenters stated that the agencies should adopt their longstanding treatment of jurisdictional impoundments, retaining jurisdiction over them even if they are completely disconnected from the tributary system. Others stated that the agencies should regulate impoundments of jurisdictional waters only if they continue to contribute flow to other jurisdictional waters, arguing for different flow regimes (i.e., perennial only, perennial and intermittent, any hydrologic connection). The agencies have considered the full range of comments and have finalized a rule that balances these diverse viewpoints, as discussed below, while streamlining and improving the clarity and applicability of the rule and remaining faithful to the agencies’ statutory authorities as discussed in Section II.B. 2. Summary of Final Rule Rationale and Public Comment Historically, the Corps’ regulations specifically defined ‘‘lakes,’’ ‘‘ponds,’’ and ‘‘impoundments.’’ In 1975, for example, the Corps published an interim final regulation, 40 FR 31320 (July 25, 1975), that administratively defined ‘‘lakes’’ as ‘‘natural bodies of water greater than five acres in surface area and all bodies of standing water created by the impounding of [waters of the United States]. Stock watering ponds and settling basins that are not created by such impoundments are not included.’’ 40 FR 31325. In response to the 1975 regulation, the Corps received a number of comments and criticisms regarding the definition of ‘‘lake.’’ Some stated that the size limitation was too small, while others stated that it was too large. Others questioned the legality of imposing any size limitation on natural lakes, arguing that a lake fewer than five acres in size is as much a ‘‘water of the United States’’ as one that is more than five acres in size. In response, the Corps established two new definitions in 1977, one for ‘‘natural lake’’ and one for ‘‘impoundment.’’ 42 FR 37129–30 (July 19, 1977). The Corps believed the two definitions would help alleviate confusion over the broad definition of ‘‘lake’’ provided in 1975. In the 1977 regulation, ‘‘natural lake’’ was defined as ‘‘a natural depression fed by one or more streams and from which a stream may flow, that occurs due to the widening or natural blockage of river or stream, or that occurs in an isolated natural depression that is not part of a surface river or stream.’’ 42 FR 37144. The Corps believed that definition reflected the three types of situations in which a natural lake may exist. The 1977 regulation defined ‘‘impoundment’’ as a ‘‘standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area. As used in this regulation, the term does not include artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing.’’ 42 FR 37144. No size limitation was placed on the 1977 definitions, and instead, the size limitations were used as a distinguishing element of the CWA section 404 nationwide permit program. In 1982, the Corps again published an interim final rule which combined ‘‘natural lake’’ and ‘‘impoundment’’ into one term, ‘‘lake.’’ 47 FR 31794–95 (July 22, 1982). Commenters stated that impoundments should not be given the same status in the review process as natural lakes; however, the Corps believed that the evaluation of the public interest should be based on what the impacts are, and not on whether the area in question is natural or manmade. In the 1982 regulations, the Corps defined ‘‘lake’’ as a standing body of open water that occurs in a natural depression fed by one or more streams from which a stream may flow, that occurs due to the widening or natural blockage or cutoff of a river or stream, or that occurs in an isolated natural depression that is not a part of a surface river or stream. The term also includes a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area. As used in this regulation, the term does not include artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing. 47 FR 31811. This same definition was retained when the Corps issued its consolidated set of regulations in 1986 (51 FR 41206, November 13, 1986); however, the term ‘‘lake’’ was only retained in the part of the regulations related to ‘‘Permits for Discharges of Dredged or Fill Material into Waters of the United States’’ (33 CFR 323) and was not included in the new part specifically related to the definition of ‘‘waters of the United States’’ (33 CFR 328). The definition of ‘‘lake’’ remains in the Corps’ current regulation at 33 CFR 323.2(b), and includes, ‘‘a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area’’ but excludes, ‘‘artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing.’’ VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22301 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 51 See the U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook p. 58 at: https:// usace.contentdm.oclc.org/utils/getfile/collection/ p16021coll11/id/2310. Until this final rule, the definition of ‘‘waters of the United States’’ has not included a separate category for lakes and ponds. To date, the agencies viewed non-isolated ‘‘lakes and ponds’’ as traditional navigable waters or as part of the tributary system where they met the tributary standard. For example, if a tributary enters a standing body of open water in a natural depression, such as a lake, which then outlets into a downstream tributary, the lake was considered part of the tributary system and the limits of jurisdiction were defined by the ordinary high water mark unless adjacent wetlands were present. Starting in the 1982 regulation, impoundments of waters otherwise defined as ‘‘waters of the United States’’ were included as a separate category of ‘‘waters of the United States.’’ See 40 CFR 323.2(a)(4) (1983); 47 FR 31810 (July 22, 1982). In implementing its regulations, the Corps deemed impoundments ‘‘waters of the United States’’ when they were created from a water of the United States, still met another category of ‘‘waters of the United States’’ after creation, or were isolated with a nexus to interstate or foreign commerce.51 In this rulemaking, the agencies proposed to maintain the ‘‘impoundments’’ category of ‘‘waters of the United States’’ as it existed in the 1980s regulation and proposed to create a new category for certain lakes and ponds. The agencies requested comment as to whether a separate category was needed for impoundments of jurisdictional waters or whether those features could be captured in other categories of ‘‘waters of the United States,’’ such as the proposed ‘‘lakes and ponds’’ category. The agencies received comments in support of maintaining a separate category for impoundments, which stated that doing so would provide clarity because it is consistent with the agencies’ longstanding practice. Commenters supporting a separate category for impoundments also stated that impoundments are fundamentally different from lakes and ponds and therefore should be regulated differently. Other commenters supported combining the two categories and stated that lakes, ponds, and impoundments function similarly on the landscape and therefore should be regulated consistently. These commenters also stated that the agencies do not have legal authority to regulate impounded features that do not otherwise satisfy the jurisdictional requirements of the CWA. Other commenters generally found the term ‘‘impoundment’’ to be unclear and requested that the agencies include a definition of the term in the final rule. The agencies also requested comment on whether existing jurisdictional impoundments could become non- jurisdictional if they were no longer regulated as a separate category of ‘‘waters of the United States.’’ In response, some commenters raised a concern that, if impoundments are combined into a single category with lakes and ponds, adjacent wetlands that are impounded could lose their jurisdictional status. The agencies received comments stating that lakes and ponds should not constitute a separate category of jurisdictional waters because these features do not have a universally- accepted definition. Some commenters stated that the category of lakes and ponds may be redundant with other categories of waters, such as impoundments, and that the extent of wetland vegetation within a shallow pond can change over time, making it difficult to distinguish between wetland and pond boundaries in some cases. Other commenters agreed that lakes and ponds should comprise a separate category of jurisdictional waters to distinguish them from other features such as tributaries and impoundments. Commenters noted that a separate category could increase regulatory certainty, as jurisdictional requirements may be different for lakes and ponds as compared to other categories of waters. The agencies have considered these competing public comments and for the reasons provided below are finalizing the rule with a single category for lakes, ponds, and impoundments of jurisdictional waters. The agencies agree with the commenters that stated lakes, ponds, and impoundments function similarly on the landscape. The final rule is consistent with the Corps’ existing definition of ‘‘lakes’’ that includes impoundments, although its ‘‘lakes’’ definition is not for purposes of defining ‘‘waters of the United States.’’ See 33 CFR 323.2(b). Like lakes and ponds, many impoundments are lentic systems (i.e., still waters) as opposed to tributaries, which are typically lotic systems (i.e., flowing waters). In many areas of the country, lakes and ponds exist only because rivers and other flowing features or wetlands have been impounded. Impounded features often provide similar commercial opportunities, water quality benefits, and wildlife habitat as compared with natural features. Similarly, both naturally occurring (but modified) and impounded waters and wetlands may have structures, such as culverts, weirs, or pumps, that are designed to manage the movement of water upstream and downstream of the structure. The agencies conclude that because lakes, ponds, and impoundments of jurisdictional waters generally function similarly across the landscape, they should be regulated consistently. In the final rule, certain lakes, ponds, and impoundments of jurisdictional waters are waters of the United States because these features are waters within the ordinary meaning of the term. As discussed in Section II.E, the plurality opinion in Rapanos stated that the term ‘‘the waters’’ is most commonly understood to refer to ‘‘‘streams and bodies forming geographical features such as oceans, rivers, [and] lakes,’ or ‘the flowing or moving masses, as of waves or floods, making up such streams or bodies.’’’ 547 U.S. at 732 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954) (emphasis added). The plurality also noted that its reference to ‘‘relatively permanent’’ waters did ‘‘not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought.’’ Id. at 732 n.5 (emphasis added). Under the final rule, lakes, ponds, and impoundments that meet the conditions to be a traditional navigable water are waters of the United States under paragraph (a)(1) of this final rule. These waters are discussed in more detail in Section III.B. It would be redundant to include additional regulatory text in the lakes, ponds, and impoundments category that declares such water features to be jurisdictional if they satisfy the paragraph (a)(1) standard, as the agencies had proposed for lakes and ponds. For clarity and simplicity, the agencies are not including that cross reference in the final rule. The final rule focuses in large part on the lake’s, pond’s, or impoundment’s surface water connection to traditional navigable waters or the territorial seas so as to remain consistent with the overall structure and function of the CWA. See, e.g., SWANCC, 531 U.S. at 168 n.3. This final rule presents a unifying legal theory for federal jurisdiction over waters and wetlands adjacent thereto that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas and is supported by the legal precedent and principles articulated in this notice. As discussed in Section II, the agencies’ authority to regulate ‘‘the waters of the United VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22302 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations States’’ is grounded in Congress’ commerce power over navigation. Given the broad purposes of the CWA, the agencies can choose to regulate beyond waters more traditionally understood as navigable but must provide a reasonable basis for doing so. Lakes, ponds, and impoundments of jurisdictional waters that contribute surface water flow to traditional navigable waters or the territorial seas in a typical year fall within the statutory authorities delegated to the agencies by Congress. Federally regulating these features effectuates the objective, goals, and policies of the CWA. By contrast, the agencies conclude that when lakes, ponds, and impoundments of jurisdictional waters do not contribute surface water flow to a traditional navigable water or the territorial seas in a typical year, such lakes, ponds, and impoundments have an insufficient connection to jurisdictional waters to warrant federal jurisdiction, unless they are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. Regulating these features would push the outer limits of the agencies’ delegated authorities and infringe on the powers of States to regulate their own land and water resources and therefore are not jurisdictional under this final rule. Through this combined category, the agencies are incorporating common principles from the Rapanos plurality and concurring opinions and respecting both the objective and the policy in CWA sections 101(a) and 101(b), respectively. Some commenters stated that only perennial lakes, ponds, and impoundments conveying perennial flow to a downstream paragraph (a)(1) water should be considered ‘‘waters of the United States.’’ Other commenters maintained that lakes, ponds, and impoundments conveying ephemeral flow to a downstream paragraph (a)(1) water should also be considered jurisdictional. The agencies proposed that perennial or intermittent flow from a lake or pond to a paragraph (a)(1) water either directly or indirectly through another jurisdictional water could establish jurisdiction. Some commenters expressed concern that it would be too difficult to determine the flow regime of features connecting lakes and ponds to waters of the United States. The agencies disagree that it would be too difficult to determine flow regime to establish jurisdiction for lakes and ponds as proposed, as the agencies have been using flow classifications to make jurisdictional determinations since the 2008 Rapanos Guidance was issued. However, upon further consideration, the agencies conclude that the proposed rule’s requirement for perennial or intermittent flow from a lake or pond to a downstream paragraph (a)(1) water would have severed jurisdiction for certain relatively permanent lakes and ponds that are regularly ‘‘connected to’’ traditional navigable waters via surface water flow. Such regular surface water flows allow such waters to connect and become indistinguishable when flowing (i.e., they look like one water). In the final rule, the agencies have eliminated the flow classification requirement and instead have clarified the types of features that can provide a sufficient surface water connection between the lake, pond, or impoundment of a jurisdictional water and a downstream jurisdictional water in a typical year to warrant federal jurisdiction consistent with the CWA. This will simplify implementation of this category. As discussed in Section III.A.3, the agencies have determined that channelized non-jurisdictional ephemeral features are capable of providing a sufficient surface water connection and that they do not sever jurisdiction if they convey surface water flow between an upstream relatively permanent jurisdictional water and a downstream jurisdictional water in a typical year. In other words, an ephemeral feature between an upstream lake and a downstream jurisdictional water would not sever jurisdiction upstream if the ephemeral feature conveys channelized surface water flow sufficient to allow the upstream and downstream waters to mix in a typical year. By contrast, the agencies conclude that diffuse stormwater run-off and directional sheet flow over upland (non- jurisdictional features under paragraph (b)(4)) do not provide a sufficient surface water connection to downstream jurisdictional waters. Therefore, upstream lakes, ponds, and impoundments that are connected to downstream jurisdictional waters only by such flows are not jurisdictional. These types of connections do not satisfy the limiting principles articulated in SWANCC and the plurality and concurring opinions in Rapanos. Lakes, ponds, and impoundments of jurisdictional waters often contribute surface water flow to other waters in a manner similar to a tributary. The agencies conclude that if these features contribute surface water flow to traditional navigable waters or the territorial seas in a typical year, they are jurisdictional for the same reasons that a tributary is jurisdictional. Lakes, ponds, and impoundments of jurisdictional waters that do not contribute surface water flow to a paragraph (a)(1) water in a typical year are not jurisdictional for the same reasons that streams are excluded if they do not contribute surface water flow to a paragraph (a)(1) water in a typical year. See Section III.D of this notice for additional discussion on tributaries. The agencies do not explicitly define ‘‘lakes and ponds, and impoundments of jurisdictional waters’’ in paragraph (c)(6) of the final rule to require those waters to be perennial and intermittent, as the agencies have required for tributaries in paragraph (c)(12). Nonetheless, ephemeral lakes, ponds, and impoundments are categorically excluded from jurisdiction under paragraph (b)(3) of the final rule. The key test for jurisdiction is that lakes, ponds, and impoundments of jurisdictional waters must contribute surface water flow to a paragraph (a)(1) water in a typical year. Waters that flow only in direct response to precipitation do not satisfy the permanence element of the phrase ‘‘relatively permanent bodies of water’’ and are not jurisdictional under this final rule. The agencies conclude that the category of lakes, ponds, and impoundments of jurisdictional waters in this final rule reflects the limits of the agencies’ authority that the plurality and concurring opinions recognized in Rapanos. By requiring a contribution of surface water flow from a lake, a pond, or an impoundment of jurisdictional waters to a paragraph (a)(1) water in a typical year, the agencies are establishing that a mere hydrologic connection cannot provide the basis for CWA jurisdiction; the connection must be a surface water connection that occurs in a typical year. Such connection to a paragraph (a)(1) water is sufficiently frequent to warrant federal jurisdiction. This requirement reflects the Rapanos plurality’s description of a ‘‘wate[r] of the United States’’ as ‘‘i.e., a relatively permanent body of water connected to traditional interstate navigable waters.’’ Id. at 742 (emphasis added). It is also informed by the Rapanos plurality’s rejection of the overly broad hydrologic connection theory that the Federal government had advanced in that case. The plurality concluded that the phrase ‘‘the waters of the United States’’ ‘‘cannot bear the expansive meaning that the Corps would give it,’’ id. at 732, and rejected the notion that ‘‘even the most insubstantial hydrologic connection may be held to constitute a ‘significant nexus.’’’ Id. at 728. Justice Kennedy VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22303 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations further established that ‘‘mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 784–85. An impoundment may lose its surface water connection to a downstream jurisdictional water due to any number of reasons, including consumptive use or evaporation or due to the structure that was constructed to impound the water. In the proposed rule, all impoundments of jurisdictional waters would be jurisdictional, regardless of any surface water connection to a downstream (a)(1) water. The agencies supported the proposed rule in part by citing the Supreme Court’s decision in S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), for the proposition that impounding a jurisdictional water does not change its status as a ‘‘water of the United States.’’ 84 FR 4154, 4172 (Feb. 14, 2019), citing S.D. Warren Co., 547 U.S. at 379 n.5. The agencies solicited comment on the category of ‘‘impoundments’’ in the proposed rule, including whether impoundments that release water downstream, but do so less than intermittently, should remain jurisdictional. Some commenters agreed that S.D. Warren Co. would authorize disconnected and isolated impounded waters to remain jurisdictional and supported the agencies’ longstanding position that such impoundments of waters of the United States remain jurisdictional. Other commenters stated that impoundments that lack a surface connection to a downstream jurisdictional water should not be waters of the United States. The agencies conclude that an impounded water that lacks a sufficient surface water connection to a downstream paragraph (a)(1) water in a typical year is not a water of the United States. This interpretation of federal regulatory authority over impoundments is most consistent with the scope of authority granted by Congress and the legal principles articulated in Section II.E of this notice. On further review and consideration, the agencies observe that S.D. Warren Co. analyzes the definition of ‘‘discharge’’ in CWA section 502(16) but does not grapple with or address the subject of this rulemaking—the definition of ‘‘waters of the United States.’’ The cited footnote in that case merely states that exerting private control over water flow (an everyday occurrence in many parts of this country) does not ‘‘denationalize’’ otherwise national waters. S.D. Warren Co., 547 U.S. at 379 n.5 (‘‘[W]e [cannot] agree that one can denationalize national waters by exerting private control over them.’’). The case did not address what happens when a water of the United States is so altered as to significantly modify its connection to traditional navigable waters, nor did the cases cited in that opinion. For example, waters of the United States are regularly defederalized under the section 404 permitting program—in some instances by transforming portions of traditional navigable waters for harbor development, and jurisdictional wetlands or small tributaries to fast land for communities and energy development, and in other instances by cutting off or separating part of jurisdictional waters that nonetheless remain waters, as is the case with certain causeway construction or application of the waste treatment exclusion for natural resource development projects. Furthermore, the agencies are aware of no decision of the Supreme Court that has ruled that the indelibly navigable principle applies to all waters of the United States, although the principle does apply to certain traditional navigable waters or any decision that would prohibit the United States from consenting to defederalization of a water by a lawfully issued section 404 permit. In this final rule, the agencies have defined ‘‘waters of the United States’’ not to include a water—including an impoundment of a jurisdictional water—that lacks a sufficient surface water connection to a downstream traditional navigable water, consistent with the principles articulated in SWANCC. See SWANCC, 531 U.S. at 168 n.3. Impoundments of traditional navigable waters that continue to meet the criteria in paragraph (a)(1) of this final rule would remain jurisdictional under the CWA. S.D. Warren is not to the contrary. The agencies recognize that many lakes, ponds, and impoundments of jurisdictional waters may be connected to other jurisdictional waters by a variety of natural and artificial non- jurisdictional features. The agencies have specified under this final rule that lakes, ponds, and impoundments of jurisdictional waters do not lose their jurisdictional status if they contribute surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The agencies describe in Section III.A.3 of this notice that such non-jurisdictional features do not sever jurisdiction when surface water flow is conveyed in a typical year, and that such flow leads to mixing between an upstream relatively permanent jurisdictional water and a downstream jurisdictional water. Consistent with this discussion, a non-jurisdictional feature remains non-jurisdictional even if it provides a channelized surface water connection between jurisdictional waters in a typical year. Lakes, ponds, and impoundments of jurisdictional waters that are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year are also waters of the United States under this final rule. See Rapanos, 474 U.S. at 732 (Scalia, J., plurality) (recognizing that the term ‘‘the waters’’ within ‘‘the waters of the United States’’ includes ‘‘the flowing or moving masses, as of waves or floods, making up . . . streams or bodies’’) (emphasis added) (internal quotations omitted); id. at 770 (Kennedy, J., concurring in the judgment) (‘‘the term ‘waters’ may mean ‘flood or inundation’ events that are impermanent by definition’’) (emphasis added) (internal citations omitted). During times of inundation by flooding from a paragraph (a)(1) through (3) water to a lake, pond, or impoundment of jurisdictional waters in a typical year, such a water is indistinguishable from the jurisdictional water from which the flooding originates. Inundation sufficient to establish jurisdiction occurs only in one direction, from the paragraph (a)(1) through (3) water to the lake, pond or impoundment of jurisdictional waters, rendering the feature ‘‘itself a part of those waters’’ ‘‘that are ‘waters of the United States’ in their own right.’’ Rapanos, 547 U.S. at 740, 742 (Scalia, J., plurality). The agencies received a comment that the inundation requirement should create jurisdiction if it occurs in either or both directions, rather than just from a jurisdictional water to a lake, pond or impoundment. For the reasons discussed above, the agencies have concluded that in order to be considered part of the tributary system, the surface water flow from a lake, pond, or impoundment of jurisdictional waters to a paragraph (a)(1) through (3) water needs to occur with sufficient frequency that the flow is channelized in a typical year. Non- channelized diffuse overland flow from an otherwise isolated waterbody lacks the indicia of permanence and sufficiency necessary to establish jurisdiction, as described in more detail in Section III.A.3. Mere hydrologic surface connection is not enough. Id. at 784 (Kennedy, J., concurring in the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22304 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations judgment). Flooding in a typical year from a paragraph (a)(1) through (3) water to a lake, pond, or impoundment of jurisdictional waters (that is not otherwise jurisdictional under the tests described above) is sufficient to establish jurisdiction. That is because inundation by flooding in a typical year makes the lake, pond or impoundment of jurisdictional waters ‘‘part of’’ the jurisdictional water, as may occur, for example, when an oxbow lake is located in a former channel of a meandering river. The agencies note, however, that oxbow lakes are not categorically jurisdictional under the final rule; to be jurisdictional, they must satisfy one or more of the conditions of paragraph (c)(6). Some commenters expressed concern that, as proposed, lakes and ponds may be considered jurisdictional due to a single flood event in a typical year and suggested incorporating a flood duration requirement so that brief, infrequent floods from a paragraph (a)(1) through (3) water would not cause a lake or pond to become jurisdictional. Under the final rule, inundation by flooding from a paragraph (a)(1) through (3) water to a lake, pond, or impoundment of jurisdictional waters can occur as a result of seasonal or permanent flooding, for example, so long as flood waters connect such waters to a paragraph (a)(1) through (3) water in a typical year and have as their source a paragraph (a)(1) through (3) water. The agencies are not including a minimum number of flood events or duration of flooding that must take place in the course of a typical year, due to the need to accommodate regional hydrological differences. However, a mere hydrologic connection between a non-navigable, isolated lake, pond, or impoundment and a jurisdictional water is insufficient to establish jurisdiction under this rule. For instance, a lake that may be connected to a water of the United States by flooding, on average, once every 100 years is not jurisdictional. To be jurisdictional, a lake, pond, or impoundment of jurisdictional waters that is otherwise physically separated from a water of the United States must be inundated by flooding from a paragraph (a)(1) through (3) water at least once during a typical year. Oxbow lakes, for example, may be jurisdictional under this category via inundation where they otherwise may not satisfy the flow contribution elements of paragraph (c)(6) of the final rule. The agencies have determined that an ecological connection between physically separated lakes, ponds, and impoundments of jurisdictional waters and other paragraph (a)(1) through (3) waters is insufficient to assert jurisdiction over such waters. See Rapanos, 547 U.S. at 741–42 (Scalia, J., plurality) (‘‘SWANCC found such ecological consideration irrelevant to the question whether physically isolated waters come within the Corps’ jurisdiction.’’). Some commenters requested that the agencies eliminate a case-specific ‘‘significant nexus’’ analysis for lakes and ponds, while other commenters supported maintaining a ‘‘significant nexus’’ analysis and identifying jurisdictional lakes and ponds based on ecological connections to water features such as traditional navigable waters and the territorial seas. The agencies have concluded that the lakes, ponds, and impoundments of jurisdictional waters category should replace existing procedures that may depend on a case- specific ‘‘significant nexus’’ analysis of the relationship between a particular water feature and downstream traditional navigable waters. Lakes, ponds, and impoundments of jurisdictional waters constitute a category of ‘‘waters of the United States’’ that is more consistent and predictable for members of the public and regulatory agencies to implement than a case-specific ‘‘significant nexus’’ analysis. The approach to lakes, ponds, and impoundments of jurisdictional waters in this final rule is also intended to avoid ‘‘impairing or in any manner affecting any right or jurisdiction of the States with respect to waters (including boundary waters) of such States.’’ 33 U.S.C. 1370. For example, lakes, ponds, and impoundments of jurisdictional waters are not waters of the United States if they do not contribute surface water flow to a traditional navigable water in a typical year or are not inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. Rather, they are water resources of the States (or Tribes), and therefore States have an inherent interest in managing such features pursuant to the powers reserved to the States under the Constitution (and Tribes have analogous interests as well). See., e.g., North Dakota, 127 F. Supp. 3d at 1059. States and Tribes may therefore address such features under their own laws to the extent they deem appropriate. To address comments that combining the lakes and ponds category with impoundments could result in impounded adjacent wetlands losing jurisdiction, the agencies have made minor modifications to the final regulatory text from the proposal. Under the final rule, impoundments of wetlands are jurisdictional as ‘‘impoundments of jurisdictional waters’’ if the wetlands being impounded first meet the definition of ‘‘adjacent wetlands’’ and then meet the conditions of the lakes, ponds, and impoundments of jurisdictional waters category. For example, under the final rule, impounded adjacent wetlands are jurisdictional as ‘‘impoundments of jurisdictional waters’’ if they form a feature that meets the conditions of the lakes, ponds, and impoundments of jurisdictional waters category. That is, adjacent wetlands that are impounded frequently become ponds and may lose their jurisdictional status as adjacent wetlands because they no longer satisfy all three factors of the ‘‘wetlands’’ definition. The final rule would ensure that these waters remain jurisdictional if they satisfy the elements of paragraph (c)(6). If those impounded wetlands, however, continue to satisfy the definition of ‘‘adjacent wetlands,’’ they would remain jurisdictional as adjacent wetlands. In the uncommon circumstance where an impoundment completely severs the surface water connection between an adjacent wetland and a jurisdictional water in a typical year, such that the feature no longer satisfies the definition of ‘‘adjacent wetlands,’’ the wetland would no longer be jurisdictional under this final rule. Section III.G of this notice provides additional discussion on adjacent wetlands. The agencies acknowledge that this final rule represents a change from the agencies’ longstanding practice concerning impoundments of jurisdictional waters. Under the 2019 Rule, notwithstanding the principles of SWANCC, impoundments of jurisdictional waters would be jurisdictional under the separate impoundments category regardless of any surface water connection to a downstream jurisdictional water. The agencies now conclude that this prior interpretation is not supported by the text, structure, or legislative history of the CWA, Supreme Court precedent, or the foundational legal principles of this final rule. See Section II.E. Justice Kennedy’s concurring opinion also indicates that completely isolated waters are too remote to be regulated under the Commerce Clause powers. See 547 U.S. at 779 (Kennedy, J., concurring in the judgment) (‘‘Nevertheless, the word ‘navigable’ in the Act must be given some effect. Thus, in SWANCC the Court rejected the Corps’ assertion of jurisdiction over isolated ponds and mudflats bearing no evident connection to navigable-in-fact waters.’’ (internal citation omitted)). The VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22305 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 52 See ‘‘Complete FCode list for NHD Hydrography Features,’’ available at https:// nhd.usgs.gov/userGuide/Robohelpfiles/NHD_User_ Guide/Feature_Catalog/Hydrography_Dataset/ Complete_FCode_List.htm. 53 The agencies note that the construction of a physical structure that impounds a body of water (e.g., a dam, berm, or weir) may require a CWA section 404 permit (e.g., when a discharge of dredged or fill material into a jurisdictional water occurs during construction of the impounding structure), in addition to other authorizations which may be required, such as a RHA section 9 or section 10 permit. agencies conclude that this principle should be applied to all waters, whether they are impoundments or not. The final rule is also consistent with the agencies’ longstanding practice that a jurisdictional water may be altered and made non-jurisdictional by obtaining a CWA section 404 permit to place fill material in a wetland or other water, thereby converting that water to fast land. Some commenters requested the agencies define the terms ‘‘lake’’ and ‘‘pond,’’ but other commenters stated that there were deficiencies in the proposed alternatives for defining ‘‘lakes’’ and ‘‘ponds’’ such as the definitions based on size, depth, or the Cowardin classification system developed by the U.S. Fish and Wildlife Service. Although regional naming conventions may vary, the agencies conclude that the terms ‘‘lake’’ and ‘‘pond’’ are well-understood and that additional regulatory definitions beyond what is included in the final rule are not necessary. Rather than defining ‘‘lakes’’ and ‘‘ponds’’ based on their geomorphology or artificial or natural status, the agencies have instead defined surface water characteristics and conditions in paragraph (c)(6) for purposes of establishing jurisdiction over lakes and ponds (i.e., standing bodies of open water that contribute surface water flow to traditional navigable waters or are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year). The same is true for the term ‘‘impoundment,’’ which some commenters suggested is unclear. The agencies intend the term ‘‘impoundment,’’ as it is used in this rule and as it is used in common parlance, to mean a standing body of open water that is formed by blocking or restricting the flow of a pre-existing river, stream, or tidal area or by blocking or restricting the water of a pre-existing wetland, lake, or pond. Compare Webster’s II, New Riverside University Dictionary (1994) (defining ‘‘impound’’ to mean to ‘‘confine in’’ or to ‘‘accumulate (water) in a reservoir’’). This is generally consistent with the Corps’ current definition in 33 CFR 323.2(b) and should provide sufficient guidance for the public to understand the regulation. An impoundment that holds back, blocks, or restricts the flow of a water of the United States is considered ‘‘constructed in’’ that water for purposes of this final rule, even if portions of the impounded water also cover areas that were originally upland or non-jurisdictional waters. 3. How will the agencies implement the final rule? Lakes and ponds are naturally formed through a variety of events, including glacial, tectonic, and volcanic activity. Natural lakes and ponds can also be subsequently modified to change surface elevation, depth, and size. In some parts of the country these modified lakes and ponds are referred to as impoundments, whether they impound or enlarge an existing water of the United States or modify a non- jurisdictional water; in other areas, these may retain lake or pond nomenclature. Lakes, ponds, and impoundments can be man-made features constructed for industrial and agricultural uses, power generation, domestic water supply, or for aesthetic or recreational purposes. Many lakes, ponds, and impoundments have at least one outflow in the form of a river, stream, or drain which maintain a feature’s surface water level or stage by allowing excess water to discharge. Some lakes, ponds, and impoundments do not have an outflow and lose water solely by evaporation, underground seepage, or consumptive use. Individual lakes, ponds and impoundments range in size. Ponds are generally smaller in size than lakes, but regional naming conventions vary. Lakes are also generally deeper than ponds. Like lakes and ponds, impoundments can be large or small, deep or shallow. Some of these waters are jurisdictional under paragraph (a)(3) of the final rule, as discussed above, while others are non- jurisdictional, particularly many artificial lakes and ponds pursuant to paragraph (b), as discussed in Section III.H. Lakes, ponds, and impoundments are familiar types of waters that can be easily identified by landowners; the agencies; local, State, and tribal governments; consultants; and others. The tools discussed in Section III.D of this notice to identify the presence of a potential tributary can also be helpful to establish the presence of a lake, pond, or impoundment. For example, indication of an enclosed body of water on a USGS topographic map or certain waterbody types in the NHD data may show that a lake, pond, or impoundment is present. USGS topographic maps often include different symbols to indicate perennial and intermittent lakes and ponds where such features are mapped. See ‘‘Topographic Map Symbols,’’ available at https://pubs.usgs.gov/gip/ TopographicMapSymbols/ topomapsymbols.pdf. Waterbodies such as perennial and intermittent lakes and ponds, and reservoirs are also represented in NHDWaterbody, where such features are mapped.52 The NHD portrays the spatial geometry and the attributes of the features. However, as the agencies recognize in Section IV, these tools were not designed to indicate the jurisdictional status of waters of the United States, and limitations associated with these maps and data sets may require field- verification for accuracy. After identifying a lake, pond, or impoundment, the next step is to determine whether the lake, pond, or impoundment meets the conditions of a paragraph (a)(1) water under the final rule and would therefore be regulated under that category. Consistent with the agencies’ longstanding regulation and practice, paragraph (a)(3) waters do not include impoundments of non- jurisdictional waters. If an impoundment does not meet the conditions of a paragraph (a)(1) water, then the agencies must establish whether the feature is an impoundment of a jurisdictional water. The agencies may use historical and current sources of information such as construction plans, permit records, aerial photography, maps, and remote sensing data, as well as topographic information or relevant field data from site visits, to determine whether an impoundment was created by impounding a jurisdictional water such as a tributary or adjacent wetland. In making a jurisdictional determination under this rule, the agencies would evaluate the open body of water or wetland.53 If a lake, pond, or impoundment of a jurisdictional water does not meet the conditions of a paragraph (a)(1) water, then the agencies would determine whether the water directly or indirectly contributes surface water flow to a paragraph (a)(1) water in a typical year, or is inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. The agencies could use similar sources of information indicating the existence of a lake, pond, or impoundment to determine whether the water feature contributes surface water flow to a paragraph (a)(1) water in VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22306 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations a typical year. Many commenters requested that the agencies identify specific sources of information that would be used to determine whether lakes, ponds, and impoundments contribute surface water flow to a water of the United States. A combination of the tools and other resources described in Section III.D.3 may be used to establish jurisdiction of a lake, pond, or impoundment. For instance, if utilizing the NHD, waterbodies that are classified as a lake/pond or a reservoir in the dataset may have NHDFlowline artificial paths represented as flowing through them to complete a stream network and as a surrogate for general water flow direction. Combining this information with site visits, climate data, and surrounding hydrology data can yield greater certainty as to the presence of a lake, pond, or impoundment, and as to whether the feature contributes surface water flow to a downstream paragraph (a)(1) water in typical year. These tools may also be helpful in indicating whether a lake, pond, or impoundment of a jurisdictional water is part of the tributary network of a paragraph (a)(1) water. For example, the presence of a ‘‘blue line stream’’ on USGS topographic or NHD maps which extends from the feature may indicate that the lake, pond, or impoundment contributes surface water flow, directly or indirectly through a paragraph (a)(2) through (4) water, to a paragraph (a)(1) water in a typical year, which may indicate that the feature is jurisdictional. Other complementary data sources that can be used in conjunction with maps to determine the potential jurisdictional status of a lake, pond, or impoundment of a jurisdictional water include gage data, bathymetry data, elevation data, spillway height, historic water flow records, flood predictions, statistical evidence, aerial photographs, remote sensing data, and hydrologic and non- hydrologic field observations. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature; through a culvert, dike, spillway, or similar artificial feature; or through a debris pile, boulder field, or similar natural feature. Under the final rule, the agencies have determined that lakes, ponds, and impoundments of jurisdictional waters may be jurisdictional if they have a channelized surface water connection to a paragraph (a)(1) water in a typical year. To determine the existence of channelized non-jurisdictional surface water features (e.g., ephemeral streams or non- jurisdictional ditches), culverts, dikes, spillways, or similar artificial features, or debris piles, boulder field, or similar natural features, the agencies may use remote sensing data, aerial photography, and field observations. The agencies may also rely on elevation data, aerial photography, remote sensing data, hydrologic models, flow data, field indicators, operation records, and visual observations to determine whether flow likely occurs through these non- jurisdictional water features in a typical year. Lakes, ponds, and impoundments of jurisdictional waters that are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year are also waters of the United States under this rule. Commenters noted that field observations, sometimes based on multiple site visits, may be necessary to determine that a surface water connection exists for lakes and ponds as a result of flooding from a traditional navigable water, tributary, or other jurisdictional lake or pond, or jurisdictional impoundment. Many commenters also stated that establishing a surface water connection based on inundation from a paragraph (a)(1) through (3) water to a lake or pond in a typical year may be difficult to implement. The agencies disagree with this suggestion as they are frequently asked to complete jurisdictional determinations when surface water connections are not present. In these cases, the agencies have used a variety of data sources that do not depend on visual observations of inundation, including but not limited to flood records, precipitation data, elevation data, aerial photography, remote sensing data, and hydrologic models. The agencies will complement remote tools with hydrologic and non-hydrologic field observations when necessary to determine the presence of a jurisdictional lake, pond, or impoundment due to inundation by flooding from a paragraph (a)(1) through (3) water. The agencies recognize that artificial features such as a dike or berm could prevent a lake or pond from releasing surface water downstream to a water of the United States in a typical year. Similarly, a dam could prevent an impounded water from releasing surface water downstream to a water of the United States in a typical year. Under the final rule, lakes, ponds, and impoundments of jurisdictional waters are jurisdictional if they meet the conditions of paragraph (c)(6), including contributing surface water flow to a downstream jurisdictional water in a typical year. Such contribution could occur through pumps, flood gates, reservoir releases, or other mechanisms. The agencies do not distinguish between natural and artificially- manipulated surface water flow that connects a lake, pond, or impoundment with another water of the United States in a typical year. Furthermore, if an artificial feature such as a dike or dam causes a channelized downstream perennial or intermittent feature to become ephemeral, that channelized ephemeral feature would be non- jurisdictional under paragraph (b)(3) but would not sever jurisdiction of upstream features as long as it conveys surface water flow in a typical year to a downstream paragraph (a)(1) water. In Section III.A.1 of this notice, the agencies describe a variety of methods and data sources that could be used to determine whether conditions meet the definition of ‘‘typical year.’’ For instance, the agencies have developed and utilized a method for determining normal precipitation conditions. The agencies currently use professional judgment and a weight of evidence approach as they consider precipitation normalcy along with other available data sources. The agencies recognize the need to consider seasonality and timing of surface water connections in utilizing the data sources described above and determining whether lakes, ponds, and impoundments meet the conditions of paragraph (c)(6) in the final rule. For example, a lake, pond, or impoundment of a jurisdictional water may be inundated by flooding from a paragraph (a)(1) through (3) water only during seasonally wet conditions. If the agencies complete a jurisdictional determination during seasonally dry conditions and do not visually observe inundation, they may use the multiple tools described above, including remote- and field-based hydrologic and non- hydrologic indicators, to determine whether inundation from flooding would typically occur during seasonally wet conditions. A few commenters discouraged the agencies from relying solely on one source of data and recommended that mapping sources should be paired with remote sensing and field verification data. As described above, the agencies encourage the use of multiple complementary data sources to establish the presence of lakes, ponds, and impoundments and to determine their jurisdictional status. For example, waterbody and flowline features in the NHD could be used to determine the VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22307 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations likelihood of an existing lake, pond, or impoundment that has a direct or indirect surface water connection to a paragraph (a)(1) water. A site visit could then confirm the existence of the lake, pond, or impoundment, and aerial photography and physical field indicators or local knowledge could establish the likelihood of recent inundation. Finally, the agencies could determine whether climatic conditions meet the definition of ‘‘typical year’’ using, for example, the method for determining normal precipitation conditions described in Section III.A.1 of this notice, combined with other relevant sources of information such as the Palmer Drought Severity Index. Many commenters noted that the availability of data records and tools may vary across the country. The agencies have determined that the information provided by the tools described herein and other available information will vary in availability and accuracy in different parts of the country, and will take that into account when utilizing their expert judgment in evaluating the information prior to determining the jurisdictional status of a lake, pond, or impoundment of a jurisdictional water. Some commenters asked whether features could simultaneously be excluded from regulation as artificial lakes and ponds, but also meet the definition of jurisdictional impoundments. As discussed in Section III.H of this notice, paragraph (b)(8) of the final rule specifies that the artificial lakes and ponds exclusion does not apply to jurisdictional impoundments. An artificial lake or pond will be excluded even if it satisfies the definition in paragraph (c)(6), so long as it was constructed or excavated in upland or in non-jurisdictional waters and is not a jurisdictional impoundment. In other words, paragraph (b)(8) is designed to exclude artificial lakes and ponds that are constructed in upland or non- jurisdictional waters, even where they may have a surface water connection to a downstream jurisdictional water in a typical year. G. Adjacent Wetlands 1. What are the agencies finalizing? The agencies are finalizing a category of ‘‘waters of the United States’’ to include all adjacent wetlands to: The territorial seas and traditional navigable waters (paragraph (a)(1) waters); tributaries to those waters (paragraph (a)(2) waters); and lakes, ponds, and impoundments of jurisdictional waters (paragraph (a)(3) waters). In this final rule, the agencies define the term ‘‘adjacent wetlands’’ to mean wetlands that: (1) Abut a paragraph (a)(1) through (3) water; (2) are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year; (3) are physically separated from a paragraph (a)(1) through (3) water only by a natural berm, bank, dune, or similar natural feature; or (4) are physically separated from a paragraph (a)(1) through (3) water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the paragraph (a)(1) through (3) water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. Under the final rule, an adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure (i.e., not naturally occurring) divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. By retaining the term ‘‘adjacent’’ in the definition from the longstanding regulations, the agencies are continuing to use terminology that is familiar to the agencies and the regulated public. As proposed, however, the agencies are not including the terms ‘‘bordering, contiguous, or neighboring’’ from the previous regulations to reduce the potential confusion associated with using three seemingly similar terms in the same definition. See, e.g., U.S. General Accounting Office, Waters and Wetlands, GAO–04–297, at 10 (Feb. 2004) (‘‘The regulations specify that adjacent means ‘bordering, contiguous, or neighboring’.... This definition of adjacency leaves some degree of interpretation to the Corps districts.’’); see also id. at 3 (‘‘Districts apply different approaches to identify wetlands that are adjacent to other waters of the United States and are subject to federal regulation.’’). Instead, the agencies use the term ‘‘abut’’ to clearly identify those waters that are inseparably bound up with other jurisdictional waters, in addition to the other clear tests for adjacency in this final rule. The final rule adopts categorical tests for adjacency that are like those included in the proposal, but upon consideration of the public comments received, the agencies have enhanced the final definition to improve its clarity and ease of implementation, and to include additional wetlands that, upon further consideration, the agencies conclude should be subject to federal jurisdiction. Like the proposal, adjacent wetlands are those that abut or otherwise have a direct hydrologic surface connection to other covered waters in a typical year. But the agencies have modified the test to maintain jurisdiction over wetlands separated from other jurisdictional waters only by natural berms, banks, or dunes as those natural separations are evidence of a dynamic and regular direct hydrologic surface connection between the resources based on the agencies’ technical expertise and experience. The agencies have also simplified and expanded the type of surface water connections that are not jurisdictional themselves but can nevertheless maintain jurisdictional connectivity between wetlands and other waters of the United States that are separated only by artificial dikes and other barriers. The agencies have also expanded jurisdiction, as compared to the proposal, over wetland complexes that are crossed by roads and similar structures if those structures allow for a surface water connection between the segregated wetland portions (such as through a culvert through a roadway) in a typical year. Many commenters supported the proposal as establishing an appropriate balance between Federal and State jurisdiction over wetlands. Others stated that the proposal regulated too broadly. Still others asserted that the proposal too narrowly interpreted the agencies’ CWA authorities and restricted jurisdiction over many ecologically important wetlands. The agencies have considered the diverse range of comments and are finalizing a rule that results in a balance of these competing views while adhering to the agencies’ delegated authorities under the CWA and avoiding the outer limits of such authority. Like the proposed rule, this final rule maintains the longstanding regulatory definition of ‘‘wetlands’’ in paragraph (c)(16) to mean ‘‘those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.’’ This is a well-established definition that is familiar to regulators, environmental consultants, and the scientific community. The agencies received many public comments urging them to maintain this definition, while certain other commenters suggested the agencies adopt different formulations. In this final rule, the agencies have retained the longstanding definition unchanged, as proposed. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22308 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 54 See Corps’ 1987 Wetlands Delineation Manual at 9–10 (‘‘Wetlands have the following general diagnostic environmental characteristics: (1) Vegetation. The prevalent vegetation consists of macrophytes that are typically adapted to areas having hydrologic and soil conditions . . . Hydrophytic species, due to morphological, physiological, and/or reproductive adaptation(s), have the ability to grow, effectively compete, reproduce, and/or persist in anaerobic soil conditions.... (2) Soil. Soils are present and have been classified as hydric, or they possess characteristics that are associated with reducing soil conditions.... (3) Hydrology. The area is inundated either permanently or periodically at mean water depths ≤6.6 ft. or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation.’’). Consistent with the proposal, the agencies are finalizing a definition of ‘‘upland’’ to mean any land area above the ordinary high water mark or high tide line that does not satisfy all three wetland factors (i.e., hydrology, hydrophytic vegetation, and hydric soils 54) under normal circumstances, as described in the Corps’ 1987 Wetlands Delineation Manual. Features that were once wetlands but have been naturally transformed or lawfully converted to upland (e.g., in compliance with a CWA section 404 permit) are considered upland under the final rule. For convenience, the agencies are including the existing Corps definitions for ‘‘ordinary high water mark’’ and ‘‘high tide line’’ from 33 CFR 328.3 in the EPA’s regulations, as those terms are used in the final definition of ‘‘upland.’’ 2. Summary of Final Rule Rationale and Public Comments Under the final rule, the ‘‘adjacent wetlands’’ definition is based on the text, structure, and legislative history of the CWA and on the core principles and concepts set forth in the three Supreme Court cases addressing the scope of the phrase ‘‘the waters of the United States,’’ as discussed at length in Section II.E.2. Adjacent wetlands form part of the waters of the United States if they are ‘‘inseparably bound up with the ‘waters’ of the United States.’’ Riverside Bayview, 474 U.S. at 134. Non- adjacent wetlands, on the other hand, are isolated from waters of the United States and are non-jurisdictional for the reasons discussed below and in Section III.A of this notice. This rule’s categorical treatment of adjacent wetlands balances the objective in CWA section 101(a) to ‘‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters,’’ 33 U.S.C. 1251(a), and the clear policy direction in CWA section 101(b) to ‘‘recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan for the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .’’ 33 U.S.C. 1251(b); see also Rapanos, 547 U.S. at 737 (Scalia, J., plurality). Under this final rule, wetlands that do not abut a paragraph (a)(1) through (3) water, are not inundated in a typical year by a paragraph (a)(1) through (3) water, or are physically separated from a paragraph (a)(1) through (3) water by more than a natural barrier and lack a direct hydrologic surface connection to a paragraph (a)(1) through (3) water in a typical year, as described in paragraph (c)(1), are not inseparably bound up with the ‘‘waters of the United States.’’ Such non-adjacent wetlands are more appropriately regulated by States and Tribes pursuant to their own authorities. This final rule establishes a clear, predictable regulatory framework that can be implemented in the field. Some commenters supported the agencies’ proposed definition of ‘‘adjacent wetlands’’ and stated that it adheres to the key Supreme Court decisions, the CWA, and the Constitution. Other commenters stated that the proposal struck an appropriate balance between retaining federal jurisdiction over wetlands that are truly adjacent to, and therefore inseparably bound up with, jurisdictional waters and leaving isolated and disconnected wetlands subject to the laws of States and Tribes. Other commenters opposed the agencies’ proposed definition because it included wetlands that abut more than traditional navigable waters, wetlands that may not physically touch other jurisdictional waters, and wetlands that lack a continuous hydrologic surface connection to such waters. Several commenters, for example, interpreted the plurality opinion in Rapanos as requiring a constant surface water connection to reach beyond the water’s edge. Some commenters recommended that all wetlands be deemed jurisdictional. Other commenters stated that the agencies’ proposal was arbitrary and capricious, was inconsistent with the CWA, and that narrowing CWA jurisdiction over adjacent wetlands should be based more on scientific considerations than on legal ones. Other commenters stated that the agencies’ proposed definition was inconsistent with the Riverside Bayview and Rapanos decisions, particularly Justice Kennedy’s concurring opinion in Rapanos. Some commenters stated that the direct hydrologic surface connection requirement in the proposed rule would not sufficiently protect certain wetlands with hydrological, chemical, and biological connections that the commenters believed are important to restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters and was therefore incompatible with section 101(a) of the CWA. The agencies do not view the scope of their authority as limited to wetlands that abut traditional navigable waters, nor do they view their authorities as limited to wetlands that physically touch other jurisdictional waters. The agencies also do not view the Rapanos plurality opinion as narrowly as some commenters suggest. However, classifying all wetlands as jurisdictional is clearly inconsistent with the CWA and Supreme Court guidance, and such expansive federal jurisdiction would not allow for the appropriate delineation between federally-regulated waters and State and tribal land and water resources. The same is true for asserting federal authority over isolated wetlands that lack hydrological surface connection to other jurisdictional waters, or that connect hydrologically only infrequently. The agencies agree with commenters who said that the revised definition should be based on the law and science; however, the agencies recognize that science cannot dictate where to draw the line between Federal and State or tribal waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA. In short, the agencies recognize that the scope of CWA jurisdiction over wetlands has confounded courts, members of the regulated community, regulators, and the public for decades. There are widely varying views as to which wetlands should be covered, and why. The different views in Rapanos and of Rapanos highlight the complexity of the issue. In this final rule, the agencies have considered the law, the science, and the multiple perspectives that have been offered over the years and in response to the agencies’ proposal. The agencies believe that the proposal was a lawful and appropriate interpretation of agency authority under the CWA, but as described further below, the agencies have made some modifications in the final rule to better incorporate common principles from the Rapanos plurality and concurring opinions and to strike a better balance that furthers both the objective and the policy in CWA sections 101(a) and 101(b), respectively. The agencies also recognize that the definition of ‘‘adjacent wetlands’’ in the final rule differs from the regulatory definition that the Supreme Court addressed in Riverside Bayview, but as VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22309 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations discussed in Section II.E.2.a of this notice, a court’s deference to an agency’s interpretation of a statute does not foreclose an agency from adopting alternative interpretations. This final rule adopts an alternative interpretation, but it is based on the text, structure, and legislative history of the CWA, additional Supreme Court instruction developed since Riverside Bayview, the reasoned policy choices of the executive branch agencies authorized by Congress to implement the Act, and the agencies’ technical and scientific expertise administering the CWA over nearly five decades. ‘‘In determining the limits of [their] power to regulate discharges under the Act,’’ the agencies according to the Supreme Court in Riverside Bayview, ‘‘must necessarily choose some point at which water ends and land begins.’’ 474 U.S. at 132. ‘‘Where on this continuum to find the limit of ‘waters’ is far from obvious[,]’’ but the Court has subsequently identified some additional limiting principles to help guide the agencies. In SWANCC, the Supreme Court held that the agencies do not have authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to a traditional navigable water, as regulation of those waters would raise constitutional questions regarding the scope of CWA authority. 531 U.S. at 172. The plurality opinion in Rapanos added that it did not consider certain wetlands to be jurisdictional under the Act, specifically, wetlands with only an ‘‘intermittent, physically remote hydrologic connection to ‘waters of the United States,’’’ as those ‘‘do not implicate the boundary-drawing problem of Riverside Bayview.’’ 547 U.S. at 742. Justice Kennedy’s concurring opinion in Rapanos adds that in some instances, as exemplified by the ‘‘ponds and mudflats that were isolated in the sense of being unconnected to other waters covered by the Act,’’ ‘‘there may be little or no connection’’ ‘‘between a nonnavigable water or wetland and a navigable water,’’ and jurisdiction under the Act may be lacking. Id. at 766–67. The final rule is consistent with SWANCC and the Rapanos plurality and concurring opinions in that it would exclude isolated wetlands with only physically remote hydrologic connections to jurisdictional waters. Ecological connections likewise do not provide an independent basis for including physically isolated wetlands within the phrase ‘‘the waters of the United States.’’ See, e.g., id. at 741–42 (Scalia, J., plurality) (‘‘SWANCC rejected the notion that the ecological considerations upon which the Corps relied in Riverside Bayview—and upon which the dissent repeatedly relies today . . . [–] provided an independent basis for including entities like ‘wetlands’ (or ‘ephemeral streams’) within the phrase ‘the waters of the United States.’ SWANCC found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps’ jurisdiction.’’ (emphasis in original)); see also, e.g., id. at 778 (Kennedy, J., concurring in the judgment) (‘‘[E]nvironmental concerns provide no reason to disregard limits in the statutory text.’’). In this rule, wetlands adjacent to paragraph (a)(1) through (3) waters are categorically jurisdictional. The agencies adopt this position based on the rationale that an adjacent wetland is ‘‘inseparably bound up with’’ the jurisdictional water; if the water is jurisdictional, so is the adjacent wetland. Riverside Bayview, 474 U.S. at 134; Rapanos, 547 U.S. at 740 (Scalia, J., plurality) (‘‘‘Faced with such a problem of defining the bounds of its regulatory authority,’ we held, the agency could reasonably conclude that a wetland that ‘adjoin[ed]’ waters of the United States is itself a part of those waters.’’) (quoting Riverside Bayview, 474 U.S. at 132, 135 & n.9). The Riverside Bayview Court also acknowledged ‘‘that a definition of ‘waters of the United States’ encompassing all wetlands adjacent to other bodies of water over which the [agencies have] jurisdiction is a permissible interpretation of the Act,’’ 474 U.S. at 135, and Justice Kennedy added in Rapanos that ‘‘the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.’’ 547 U.S. at 780. The balance of this subsection describes the four ways in which the agencies will assert categorical jurisdiction over adjacent wetlands under this final rule. Consistent with the proposal, under this final rule, wetlands are considered indistinguishable from other jurisdictional waters, and therefore are adjacent, when they abut such waters. The agencies clarify in the final rule that the term ‘‘abut’’ means ‘‘to touch at least at one point or side.’’ See Webster’s II, New Riverside University Dictionary (1994) (defining ‘‘abut’’ to mean ‘‘to touch at one end or side of something’’). ‘‘Abut’’ as used in this final rule is also consistent with the common understanding of the term ‘‘adjacent,’’ which means ‘‘next to,’’ ‘‘adjoining,’’ ‘‘to lie near,’’ or ‘‘close to.’’ See id. The term ‘‘abut’’ is therefore intended to provide members of the regulated community with clear, predictable and understandable guidance as to which wetlands lie in such close proximity to jurisdictional waters that they are considered categorically jurisdictional under the CWA. As discussed in Section II.E.2, the plurality in Rapanos characterized the scope of CWA jurisdiction over wetlands as encompassing wetlands, like those at issue in Riverside Bayview, with a ‘‘continuous surface connection’’ or a ‘‘continuous physical connection’’ to a navigable water. Rapanos, 547 U.S. at 742, 751 n.13 (Scalia, J., plurality). Justice Kennedy’s concurrence recognized that ‘‘the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a ‘navigable water’ under the Act.’’ Id. at 767 (Kennedy, J., concurring in the judgment). Wetlands that abut another jurisdictional water have a continuous surface or physical connection to those waters and are therefore inseparably bound up with them. See, e.g., id. at 740 (Scalia, J., plurality). Wetlands that abut other jurisdictional waters are adjacent under this final rule even absent evidence of a hydrologic surface connection occurring between the two, as not all abutting wetlands display surface water as the wetland hydrology factor but rather may have saturated soils, a high water table, or other indicators of hydrology. In this final rule, an abutting wetland is ‘‘adjacent’’ regardless of where ‘‘the moisture creating the wetlands . . . find[s] its source.’’ Rapanos, 547 U.S. at 772 (Kennedy, J., concurring in the judgment) (citing Riverside Bayview, 474 U.S. at 135), so long as the wetland touches the jurisdictional water at one point or side. In other words, while a surface water exchange between a wetland and a paragraph (a)(1) through (3) water under this final rule is evidence that the wetland is abutting, such an exchange is not required under the definition for wetlands that abut. The inclusion of abutting wetlands without a surface water exchange with a paragraph (a)(1) through (3) water adheres to Justice Kennedy’s statement that ‘‘[g]iven the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of a hydrologic connection (in the sense of interchange of waters) that shows the wetlands’ significance for the aquatic system.’’ Id. at 786. The agencies recognize that the categorical inclusion of adjacent wetlands beyond wetlands that ‘‘actually abut[]’’ navigable-in-fact waters, like those addressed in Riverside VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22310 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations Bayview, 474 U.S. at 135, is dependent on the relationship between the other categories of ‘‘waters of the United States’’ and waters more traditionally understood as navigable. The agencies believe that the definition of ‘‘tributary’’ in this final rule, as described in Section III.D, appropriately limits federal jurisdiction to those rivers and streams that due to their relatively permanent flow regime and contribution of surface water flow to navigable waters in a typical year are ‘‘significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.’’ Rapanos, 547 U.S. at 781 (Kennedy, J., concurring in the judgment). Because the ‘‘tributary’’ definition as finalized ‘‘rests upon a reasonable inference of ecological interconnection’’ with navigable waters, and adjacent wetlands must abut, be inundated by flooding from, or be physically separated from tributaries only by certain natural features or by artificial structures that allow for a direct hydrologic surface connection and are thus ‘‘inseparably bound up with’’ tributaries, the agencies conclude that the assertion of jurisdiction over wetlands adjacent to tributaries ‘‘is sustainable under the Act by showing adjacency alone.’’ Id. at 780 (citing Riverside Bayview, 474 U.S. at 134). The ‘‘tributary’’ definition in this final rule—which is appropriately limited to address the ‘‘breadth of [the] standard’’ about which Justice Kennedy was concerned in Rapanos, id. at 781, is consistent with and finds support in the Court’s conclusion in Riverside Bayview ‘‘that a definition of ‘waters of the United States’ encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.’’ 474 U.S. at 135. In assessing the appropriate ‘‘limits of ‘waters’’’ on the continuum between open waters and dry land, this rule’s definition balances the inclusion of certain wetlands beyond those that merely abut jurisdictional waters with the fact that ‘‘mere hydrologic connection should not suffice in all cases.’’ Rapanos, 547 U.S. at 784 (Kennedy, J., concurring in the judgment). The Rapanos plurality questioned the Corps’ broad interpretation of its regulatory authority to ‘‘conclude that wetlands are ‘adjacent’ to covered waters if they are hydrologically connected through directional sheet flow during storm events or if they lie within the 100-year floodplain of a body of water.’’ Id. at 728 (plurality opinion) (internal citations and quotations omitted). The plurality also declared that ‘‘[w]etlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ in SWANCC.’’ Id. at 742. Similarly, Justice Kennedy stated that ‘‘the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.’’ Id. at 784–85 (Kennedy, J., concurring in the judgment). Justice Kennedy also believed that ‘‘possible flooding’’ could be an unduly speculative basis for a jurisdictional connection between wetlands and other jurisdictional waters. Id. at 786. In this final rule, wetlands are not adjacent simply because a hydrologic connection between jurisdictional waters and wetlands is possible or if, for example, wetlands are connected by flooding once every 100 years or by directional sheet flow during or following storm events. Instead, wetlands are considered ‘‘adjacent’’ if they are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. The typical year requirement, described further in Section III.A.1, ensures that a sufficient surface water connection occurs and that the connection is not merely ‘‘possible’’ or ‘‘speculative.’’ Riverside Bayview held that flooding was not necessary to assert jurisdiction over wetlands that abut jurisdictional waters, but it also indicated that wetlands created by flooding from a jurisdictional water could be jurisdictional. See Rapanos, 547 U.S. at 773–74 (Kennedy, J., concurring in the judgment) (characterizing Riverside Bayview to find that jurisdiction may be appropriate ‘‘even for wetlands that are not the result of flooding or permeation’’). The agencies conclude in this final rule that wetlands that are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year are inseparably bound up with and are part of the jurisdictional water. That is because flooding in a typical year creates a continuous surface connection with another jurisdictional water during the flood event, or, in the terminology of the agencies’ proposal, a direct hydrologic surface connection. Wetlands can be inundated by flooding from a paragraph (a)(1) through (3) water in a typical year when, for example, a tributary’s flow overtops its banks. Inundation sufficient to establish adjacency occurs only in one direction, from the paragraph (a)(1) through (3) water to the wetland, which provides a direct hydrologic surface connection from a jurisdictional water to a wetland, thereby rendering the wetland ‘‘itself a part of those waters’’ ‘‘that are ‘waters of the United States’ in their own right.’’ Rapanos, 547 U.S. at 740, 742 (Scalia, J., plurality). Inundation can occur as a result of infrequent, seasonal, or permanent flooding, for example, so long as inundation occurs in a typical year and has as its source a paragraph (a)(1) through (3) water. The typical year requirement ensures that the hydrologic surface connection occurs regularly and is not ‘‘unduly speculative.’’ Although ‘‘flood or inundation events . . . are impermanent by definition,’’ id. at 770 (Kennedy, J., concurring in the judgment), when a jurisdictional water inundates a wetland by flooding on a regular basis, those waterbodies are part of the same aquatic system. The agencies received comments that the inundation requirement should create jurisdiction over a wetland if it occurs in either or both directions, rather than only from a jurisdictional water to the wetland as proposed. The agencies disagree and conclude in this final rule that it is the inundation of water from the paragraph (a)(1) through (3) water to a wetland, and not vice versa, that indicates the wetland is inseparably bound up with the paragraph (a)(1) through (3) water. Flooding from a nearby wetland to a paragraph (a)(1) through (3) water is more like diffuse stormwater run-off and directional sheet flow over upland, which the agencies have concluded are not sufficient to create or maintain federal jurisdiction. See Section III.A.3 for more information on this topic. Wetlands connected to jurisdictional waters by only such means are more appropriately regulated by the States and Tribes under their sovereign authorities. If the surface water communication from a wetland to a jurisdictional water is more frequent, for example as regular groundwater elevation rise expressed through the wetland similar to groundwater intersecting the bed of perennial or intermittent stream), then that flow from the wetland will likely channelize and form a jurisdictional tributary to a downstream water which the wetland would then abut (because it would be touching the tributary at a single point where the tributary left the wetland). If the flow is not channelized, it suggests a more attenuated connection. Alternatively, if the overland flow frequently reaches a jurisdictional water VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22311 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 55 See, for example, Connectivity of Stream and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, p. A–7, defining a ‘‘levee (natural)’’ as a ‘‘broad, low ridge or embankment of coarse silt and sand that is deposited by a stream on its floodplain and along either bank of its channel. Natural levees are formed by reduced velocity of flood flows as they spill onto floodplain surfaces and can no longer transport the coarse fraction of the suspended sediment load.’’ but does not channelize, it likely will form wetland characteristics in the flow path that could meet the definition of wetland that abuts the jurisdictional water. Some commenters requested clarification on the frequency and amount of inundation required to establish adjacency. The agencies have clarified in the final rule that inundation occurs via flooding. Inundation need only occur at least once in a typical year to establish adjacency for wetlands with no particular requirement for the volume or duration of inundation. See Section III.A.1 for additional discussion of the ‘‘typical year,’’ which allows for flexibility in determining when the precipitation and other climatic variables are within the normal periodic range. Others commented that bankfull flow, which describes the flow that just fills the channel, most commonly occurs every 1.5 years, and therefore higher magnitude flows which cause inundation from a river or stream to a riverine wetland may not occur in every calendar year or in every ‘‘typical year.’’ The agencies note that an event that may occur under ‘‘typical year’’ conditions does not necessarily occur in every calendar year. This is because the typical year is based on a rolling 30-year period of record, which necessarily includes variability from year to year over that 30-year period. One method for calculating ‘‘normal precipitation’’ requires comparing precipitation totals for a given period to the 30th to 70th percentiles of precipitation totals from the same dates over the 30-year period, as described in Section III.D.3. This range could correspond to a variety of flood recurrence intervals and flow magnitudes depending on the geographic area, time of year, climate, and other factors. Some typical years will be more wet, and others will be more dry, but the ‘‘typical year’’ definition in this final rule is intended to reflect the characteristics of a waterbody at times that are not abnormally wet or dry based on the specific historical characteristics of the water or wetland. The agencies expect that bankfull discharge flows will occur in a typical year in many riverine systems such that those flooded wetlands will be jurisdictional under the final rule. Additionally, the bankfull discharge flow conditions—and sediments carried in those flood waters and deposited landward—commonly create a natural river berm between the active channel and nearby wetlands. As described below, wetlands separated from paragraph (a)(1) through (3) waters only by a natural berm, bank, dune, or similar natural feature are jurisdictional without regard to a specific hydrologic surface connection in a typical year. In this final rule, wetlands are categorically adjacent if they are physically separated from a paragraph (a)(1) through (3) water only by a natural berm, bank, dune or similar natural feature. Such wetlands do not require a hydrologic surface connection to a paragraph (a)(1) through (3) water to be ‘‘adjacent wetlands’’ in the final rule, nor is this provision of the ‘‘adjacent wetlands’’ definition tied to the ‘‘typical year’’ construct. This is a change from the proposal that reflects the agencies’ further consideration and conclusion that certain wetlands that were excluded from jurisdiction by the proposed rule are in fact regularly connected to jurisdictional waters such that they are inseparably bound up with such waters, as many commenters noted. In this final rule, the agencies conclude that the presence of a natural berm, bank, dune, or similar natural feature indicates that a sufficient surface water connection occurs between the jurisdictional water and the wetland. For example, a natural river berm can be created by repeated flooding and sedimentation events when a river overtops its banks and deposits sediment between the river and a wetland.55 The wetland could have been formed at the same time as or after the formation of the natural river berm due to repeated flooding and the impeded return flow created by the berm. Adjacent wetlands separated only by a bank from a paragraph (a)(1) through (3) water can also occur when there is an elevation difference between the wetland and the paragraph (a)(1) through (3) water (e.g., when the stream is incised). The surface water flow of the tributary over time can erode a channel to contain the tributary which separates itself from the adjacent wetland by a bank. As with berms, these banks are indicators of a regular surface water connection and being inseparably bound up with the tributary’s aquatic system. The agencies clarify that while natural barriers may at times occur within a floodplain, the existence of a floodplain generally (and other land masses similar to a floodplain, such as a riparian area or fluvial terrace) is not sufficient to indicate a direct hydrological surface connection. The agencies also clarify that wetlands separated from jurisdictional waters by cliffs, bluffs, or canyon walls are not adjacent on the basis of being separated from a jurisdictional water only by a natural barrier because such features prohibit regular surface water communication between jurisdictional waters and such wetlands. Some commenters said that a wetland must immediately abut a jurisdictional water to be adjacent. Other commenters recommended that wetlands perched atop the riverbank of an incised stream be considered adjacent. The agencies have modified the final rule to include wetlands as ‘‘adjacent’’ when they are separated only by a natural berm, bank, dune, or similar feature. Some commenters recommended that natural berms not sever adjacency because such features form naturally in undisturbed rivers as a result of sediment deposits associated with routine flooding. The agencies agree that natural berms and similar natural features are indicators of a direct hydrologic surface connection as they are formed through repeated hydrologic events. It follows that wetlands separated from paragraph (a)(1) through (3) waters only by such berms and similar natural features should not sever adjacency. The formation of dunes between wetlands and connected waters often occurs, for example, in interdunal wetlands in coastal areas or around parts of the Great Lakes. These wetlands are often formed through wind erosion which results in the sand surface interacting with the water table, providing enough hydrology to create wetlands. They may also be formed when water levels drop in lakes or from historic glacial retreat. Many interdunal wetlands have seasonally variable hydroperiods where they may be dry during periods of low rainfall. These processes and the resulting natural berm, bank, dune or similar natural feature indicate that the wetlands are integrated and ‘‘inseparably bound up’’ with the paragraph (a)(1) through (3) waters to which they are adjacent. Accordingly, the agencies conclude in this final rule that wetlands are adjacent wetlands if they are physically separated from a paragraph (a)(1) through (3) water only by a natural berm, bank, dune, or similar natural feature. While this category of ‘‘adjacent wetlands’’ differs from the proposed rule, these types of adjacent wetlands have been included in prior regulations defining ‘‘waters of the United States,’’ and their inclusion VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22312 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations in the final rule is consistent with the agencies’ longstanding practice. See 42 FR 37129; see also 51 FR 41251 (‘‘Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’’’) (emphasis added). Under the final rule, wetlands may be separated from a paragraph (a)(1) through (3) water by only one natural feature, such as a single river berm or dune, in order to be considered adjacent. The agencies intend for wetlands separated by several natural features, such as a series of natural berms or a foredune and a backdune, from the paragraph (a)(1) through (3) water to be too remote from the jurisdictional water and therefore non- adjacent. In another example, where there is a paragraph (a)(1) water, then a dune landward of the paragraph (a)(1) water, followed by a wetland, followed by another dune and then another wetland, the first wetland is an ‘‘adjacent wetland’’ but the second distant wetland is not. Wetlands are not ‘‘adjacent wetlands’’ if they are adjacent merely to another wetland; rather under the final rule, wetlands are jurisdictional only if they are adjacent to paragraph (a)(1) through (3) waters. This position is consistent with the agencies’ longstanding regulations. See 51 FR 41206, 41250 (Nov. 13, 1986) (defining ‘‘waters of the United States as including ‘‘wetlands adjacent to’’ other jurisdictional ‘‘waters (other than waters that are themselves adjacent)’’). For example, if there is an intervening wetland between the subject wetland and a tributary, and the intervening wetland is adjacent to the tributary but is not part of the same wetland as the subject wetland (e.g., they are separated by upland), the subject wetland is not adjacent to the tributary unless it satisfies the conditions of paragraph (c)(1) in its own right (e.g., if it is inundated by flooding from the tributary in a typical year). In addition, this final rule does not allow for a ‘‘chain’’ of wetlands which may be connected hydrologically via groundwater, shallow subsurface flow, overland sheet flow, or non-wetland swales to be considered adjacent to each other or to a paragraph (a)(1) through (3) water simply because one of the wetlands in the chain is adjacent to the paragraph (a)(1) through (3) water. Wetlands that exhibit this type of ‘‘fill and spill’’ scenario are not ‘‘adjacent wetlands’’ under this final rule if the wetlands can be delineated separately from each other, with upland or non- jurisdictional waters or wetlands between them. Under this final rule, the definition of ‘‘adjacent wetlands’’ also encompasses wetlands that are physically separated from a paragraph (a)(1) through (3) water only by an artificial dike, barrier, or similar artificial structure, so long as that structure allows for a direct hydrologic surface connection between the wetlands and the paragraph (a)(1) through (3) water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. Although this final rule differs from the proposal in this respect, these types of adjacent wetlands have been defined as ‘‘waters of the United States’’ in prior regulations (although those prior regulations did not require the direct hydrologic surface connection that this final rule requires to occur in a typical year). See 42 FR 37129 (July 19, 1977). Some commenters recommended that tide gates, as well as pumps in managed aquatic systems, be allowed to maintain sufficient surface water connections for purposes of determining adjacency. The agencies agree and have modified the final rule to include wetlands with a direct hydrologic surface connection through or over such structures to a paragraph (a)(1) through (3) water in a typical year. A flood gate may be designed to restrict water flow other than in times of high water. Under the final rule, a flood gate, culvert, pump, or similar structure that allows for and is used to maintain a direct hydrologic surface connection between a jurisdictional water and a wetland at any point in a typical year satisfies the definition of ‘‘adjacent wetlands.’’ Some artificial structures may allow for frequent direct hydrologic surface connections between the wetland and the paragraph (a)(1) through (3) water, while others may not. Under the final rule, a direct hydrologic surface connection through an artificial structure must occur at least once in a typical year to establish adjacency. When an artificial structure separating a wetland from a paragraph (a)(1) through (3) water does not allow for a direct hydrologic surface connection in a typical year, the wetland is not adjacent. For example, although some artificial structures (e.g., a levee) may have subsurface connections through porous soils, this final rule requires the structure to allow for direct hydrologic surface connection between a paragraph (a)(1) through (3) water and a wetland in a typical year for the wetland to be adjacent. Similarly, if a culvert or a pump conveys water from a wetland to a jurisdictional water only during a 100- year storm, such features would not allow for a direct hydrologic surface connection between the wetland and jurisdictional water in a typical year, and those wetlands would not be adjacent. In this section of the final rule, the agencies retained the concept of direct hydrologic surface connection from the proposed rule, but modified it for ease of implementation. The proposed rule would have required that for such wetlands, a direct hydrologic surface connection occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water in a typical year. Some commenters supported the use of perennial or intermittent flow classifications to establish a direct hydrologic surface connection from a wetland to a jurisdictional water in a typical year. Other commenters stated that the concept was confusing and that the requirement to identify a perennial or intermittent connection could create implementation challenges. The agencies have been using flow classifications to make jurisdictional determinations since the 2008 Rapanos Guidance was issued, and are familiar with and can manage existing implementation challenges. However, to provide additional clarity and to improve and streamline implementation, the agencies have simplified the proposal’s approach to establishing adjacency and have eliminated the requirement that a wetland maintain a perennial or intermittent connection to the jurisdictional water in a typical year. In the final rule, a direct hydrologic surface connection in a typical year, regardless of the flow classification, is sufficient to demonstrate that the wetland and jurisdictional water are inseparably bound up. By not including a flow classification requirement for direct hydrologic surface connections in paragraph (c)(1), the agencies anticipate that more wetlands will be regulated as ‘‘adjacent wetlands’’ under the final rule as compared to the proposal. The final rule will also be easier to implement, as landowners and regulators can easily discern if an artificial structure exists and whether that structure likely allows for a direct hydrologic surface connection to occur in a typical year. See Section III.G.3 for additional discussion on implementation. Under this final rule, an adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22313 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations This aspect of the final rule was modified from the proposal but is consistent with establishing jurisdiction over wetlands physically separated by artificial structures that provide a direct hydrologic surface connection in a typical year. A road that divides one wetland into two parts (or multiple roads that divide one wetland into multiple parts) does not change the jurisdictional status of an ‘‘adjacent wetland’’ under this final rule so long as a direct hydrologic surface connection is maintained through a culvert or similar feature or over the structure (e.g., water overtopping the road at an engineered low point) which enables a direct hydrologic surface connection in a typical year between the otherwise separated portions of the adjacent wetland. With a direct hydrologic surface connection, the bisected wetland is still functioning as one wetland and is jurisdictional as one adjacent wetland. But for the road, the wetland portions would be one intact adjacent wetland, and thus the agencies have determined that it is appropriate to treat the separated portions as one adjacent wetland, so long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. Where more than one road crosses a wetland, and the first allows for continued direct hydrologic surface water connection to a jurisdictional water but the second does not, the wetlands on the far side of the second road are not part of the adjacent wetland. This modification to the final rule addresses comments that stated that prior road construction activities may not have fully mitigated for the loss of jurisdictional wetlands. Commenters raised questions about the jurisdictional status of wetland complexes under the proposed rule. Consistent with the proposal, the final rule establishes that if a wetland can be delineated from another wetland by upland or other separation (other than a road or similar artificial structure dividing a wetland that allows for a direct hydrologic surface connection through or over that structure in a typical year) then each wetland will be considered separately for purposes of determining adjacency. These separate wetlands are not adjacent to each other even if a hydrologic surface connection is present between them. Where wetlands in a complex of wetlands have a continuous physical surface connection to one another such that upland boundaries or dikes, barriers, or other structures cannot distinguish or delineate them as physically separated, the entire area is viewed as one wetland for consideration as to whether the wetland meets the terms of adjacency. If any portion of a wetland, including these physically interconnected wetlands, is adjacent to a paragraph (a)(1) through (3) water, the entire wetland is adjacent. See Riverside Bayview, 474 U.S. at 135 (‘‘Because respondent’s property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case.’’) (emphasis added). Physically remote isolated wetlands are not adjacent wetlands under this rule. Some commenters expressed concern that allowing artificial barriers to sever jurisdiction of a wetland that would otherwise be adjacent to a jurisdictional water would create incentives for the illegal construction of such barriers. The agencies note that construction of an artificial barrier such as a berm may not sever jurisdiction under the final rule, depending on the circumstances. For example, if the barrier allows for a direct hydrologic surface connection in a typical year, jurisdiction is not severed. Alternatively, a CWA section 404 permit may be issued with applicable mitigation requirements for a structure that does not allow for a direct hydrologic surface connection in a typical year and therefore severs jurisdiction of the wetland. In addition, although the agencies recognize that relevant factual issues bear on the legality of construction at any particular site, the agencies do not intend this rule to allow artificial barriers illegally constructed under the CWA to sever jurisdiction of a wetland that would otherwise be adjacent to a jurisdictional water. To be clear, this final rule does not modify the CWA prohibition on unauthorized discharges, such as the unlawful construction of a barrier in a jurisdictional wetland. Construction that is unlawful under the CWA remains subject to the agencies’ enforcement authorities. See Section III.A.3 of this notice for further discussion of what does or does not sever jurisdiction. Some commenters stated that adjacent wetlands should include constructed and restored wetlands. The agencies agree and do not view a wetland’s status as constructed, restored, rehabilitated, modified, or natural as affecting its jurisdictional status if it meets the definitions of both ‘‘wetlands’’ and ‘‘adjacent wetlands’’ under the final rule. Several commenters stated that groundwater and subsurface connections between a wetland and a paragraph (a)(1) through (3) water should be sufficient to establish adjacency. Other commenters stated that the proposal appropriately required a regular surface water connection to create jurisdictional ‘‘adjacent wetlands.’’ Given that the focus of this rule’s definition of ‘‘adjacent wetlands’’ is on the ordinary meaning of the term ‘‘waters,’’ common principles from Supreme Court guidance, and balancing the policy in CWA section 101(a) with the limitations on federal authority embodied in CWA section 101(b), the agencies are finalizing the definition of ‘‘adjacent wetlands’’ that does not include subsurface hydrologic connectivity as a basis for determining adjacency, consistent with the proposed rule. The agencies believe that implementation of subsurface connections as a basis for CWA jurisdiction would be overinclusive and would encroach on State and tribal authority over land and water resources. See Section II.E.2.a. for further discussion of the legal principles underlying the agencies’ interpretation of the surface connection requirement. A groundwater or subsurface connection could also be confusing and difficult to implement, including in the determination of whether a subsurface connection exists and to what extent. The categorical inclusion of ‘‘adjacent wetlands’’ as defined in the final rule will include some wetlands that connect to other jurisdictional waters through subsurface flow, such as some that abut or are separated by natural berms and related features. However, these wetlands must meet one of the four criteria established in paragraph (c)(1) to be ‘‘adjacent wetlands’’ and are not adjacent based simply on a subsurface hydrologic connection to jurisdictional waters. Physically remote wetlands and other wetlands that do not meet the final rule’s definition of ‘‘adjacent wetlands’’ are reserved to regulation by States and Tribes as land and water resources of those States and Tribes. A few commenters recommended that the agencies establish an administrative boundary for adjacency, such as a linear distance from a jurisdictional water to provide clarity. Other commenters stated that establishing distance thresholds or limits would be inappropriate and arbitrary. After considering these comments, the agencies are not including any distance thresholds or limits to determine adjacency in the final rule, consistent with the proposal. Indeed, the agencies believe that it would be difficult to select a boundary that is not arbitrary for a rule that applies to so many diverse situations nationwide. In addition, it can be difficult to identify a starting point from which to measure VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22314 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations an administrative boundary. While distance thresholds for establishing CWA jurisdiction over wetlands may be too arbitrary and difficult to establish, however, the same is likely not true for determining lead permitting responsibility when States or Tribes assume section 404 permitting authority under 33 U.S.C. 1344(g). In assumed programs, the question for adjacent wetlands is which regulatory authority is responsible for permitting, not whether the wetlands themselves are waters of the United States. Some members of the public commented that adjacent wetlands should include all wetlands within the 100-year floodplain. Other commenters disagreed and stated that wetlands with a one percent annual chance of flooding should not be considered waters of the United States. Under the final rule, although not all wetlands in the 100- year floodplain are jurisdictional, many adjacent wetlands will be located within the 100-year floodplain of a jurisdictional water. In addition to the other tests for adjacency, flooding in a typical year may occur in portions of the 100-year floodplain. For example, wetlands which are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year may be floodplain wetlands, or wetlands which are physically separated from a paragraph (a)(1) through (3) water only by a natural berm or dune may be floodplain wetlands. The agencies also recognize that it can be difficult to measure a floodplain’s extent as floodplains are not mapped everywhere in the country. In any event, the agencies believe that including wetlands as adjacent due solely to their presence in the 100-year floodplain goes beyond the scope of the agencies’ legal authority under the CWA and contravenes Supreme Court guidance. See, e.g., Rapanos, 547 U.S. at 746 (Scalia, J., plurality) (‘‘the Corps’ definition of ‘adjacent,’ . . . has been extended beyond reason to include, inter alia, the 100-year floodplain of covered waters’’). Consistent with the proposal, the agencies are not including a floodplain criterion (e.g., a general floodplain requirement or a specific floodplain interval requirement) to determine adjacency in the final rule. Some commenters recommended that the agencies include wetlands with a significant nexus to navigable waters as jurisdictional while others supported the agencies’ proposed approach to remove the case-specific significant nexus analysis from the determination of jurisdiction. This final rule ends the agencies’ practice of conducting case- specific significant nexus evaluations for determining whether wetlands are jurisdictional as adjacent. Under the agencies’ Rapanos Guidance, this evaluation required individual analyses of the relationship between a particular wetland (or group of wetlands aggregated together with its nearest tributary) with traditional navigable waters. Importantly, Justice Kennedy’s ‘‘significant nexus’’ test for wetlands adjacent to non-navigable tributaries was only needed ‘‘absent more specific regulations,’’ id. at 782 (Kennedy, J., concurring in the judgment), because ‘‘the breadth of [the then-existing tributary] standard . . . seems to leave wide room for regulations of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it’’ and thus ‘‘precludes its adoption as a determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood.’’ Id. at 781. In light of the ‘‘more specific [tributary] regulations’’ in this final rule, the agencies are eliminating the case- specific significant nexus analysis through categorical treatment of all adjacent wetlands, as defined by this rule, as ‘‘waters of the United States.’’ The agencies recognize that this is a new position and modifies prior agency positions on Justice Kennedy’s concurring opinion in Rapanos. The agencies also recognize that several courts have adopted the significant nexus standard as a test for jurisdiction for both adjacent wetlands and tributaries. For all the reasons described in Section II.E, the agencies are finalizing a rule that is more consistent with the body of Supreme Court guidance, including the origins of the significant nexus standard, and their authority under the Act, than were previous regulations. The agencies believe that this final rule achieves the goals of the Act and provides better clarity for the regulators and the regulated community alike, while adhering to the basic principles articulated in Rapanos, SWANCC, and Riverside Bayview. Some commenters recommended including as waters of the United States specific waters based solely on ecological importance, such as prairie potholes. Other commenters urged the agencies to finalize a rule consistent with Supreme Court guidance which directs that ecological considerations do not provide an independent basis for federal jurisdiction. As noted above, under the final rule’s definition, ecological connections alone are not a basis for including physically isolated wetlands within the phrase ‘‘the waters of the United States.’’ See, e.g., Rapanos, 547 U.S. at 741–42 (Scalia, J., plurality); see also id. at 778 (Kennedy, J., concurring in the judgment). Some commenters recommended the agencies incorporate more scientific analysis in their interpretation of the proper scope of ‘‘adjacent wetlands’’. The definition of ‘‘adjacent wetlands’’ and the categorical treatment of jurisdiction over wetlands adjacent to other jurisdictional waters is informed by science, though it is not dictated by science alone. For example, the EPA’s SAB noted when reviewing the Draft Connectivity Report in 2014, that ‘‘[s]patial proximity is one important determinant of the magnitude, frequency and duration of connections between wetlands and streams that will ultimately influence the fluxes of water, materials and biota between wetlands and downstream waters.’’ SAB Review at 60. ‘‘Wetlands that are situated alongside rivers and their tributaries are likely to be connected to those waters through the exchange of water, biota and chemicals. As the distance between a wetland and a flowing water system increases, these connections become less obvious.’’ Id. at 55 (emphasis added). The Connectivity Report also recognizes that ‘‘areas that are closer to rivers and streams have a higher probability of being connected than areas farther away.’’ Connectivity Report at ES–4. The agencies considered these and other scientific principles described above in crafting this final rule; however, as discussed in Section II.E of this notice, the line between Federal and State waters is a legal distinction, not a scientific one, that reflects the overall framework and construct of the CWA. This rule’s definition draws the legal limit of federal jurisdiction in a clear and implementable way that adheres to established legal principles, while being informed by the policy choices and scientific expertise of the executive branch agencies charged with administering the CWA. Consistent with the proposal, the agencies are retaining the longstanding definition of ‘‘wetlands’’ in this final rule. Some commenters expressed support for this approach. Some commenters requested that the agencies clarify that a wetland must satisfy all three wetland delineation factors to be considered a wetland under the rule. Other commenters requested that the agencies clarify the term ‘‘normal circumstances’’ as used in the definition of ‘‘wetlands,’’ and suggested that the term should not apply when higher than normal rainfall conditions are present. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22315 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations Commenters also requested clarification on whether human alteration affects ‘‘normal circumstances.’’ The agencies have clarified that the presence and boundaries of wetlands are determined based upon an area satisfying all three of the definition’s factors (i.e., hydrology, hydrophytic vegetation, and hydric soils) under normal circumstances. This is evident in the final definition of ‘‘upland’’ in paragraph (c)(14). The agencies have also clarified that certain elements of the ‘‘adjacent wetlands’’ definition include a ‘‘typical year’’ requirement to ensure that the jurisdictional status of wetlands is being assessed under conditions that are not too wet and not too dry. In addition, the agencies consider climatic conditions when delineating wetlands, for example, whether there are drought conditions or conditions of unusually high rainfall. The term ‘‘typical year’’ is not intended to modify the agencies’ current implementation of normal circumstances. The agencies recognize that there have been questions over time about the jurisdictional status of ditches that are not maintained. Under this final rule, as discussed in more detail in Section III.E, when a ditch constructed in an adjacent wetland contributes less than perennial or intermittent flow to a paragraph (a)(1) water in a typical year and yet, due to lack of maintenance, gains wetland characteristics, that ditch may be viewed as an adjacent wetland if it meets the definition of both ‘‘wetlands’’ under paragraph (c)(16) and ‘‘adjacent wetlands’’ under paragraph (c)(1). 3. How will the agencies implement the final rule? If a wetland satisfies this rule’s definition of ‘‘wetlands’’ and ‘‘adjacent wetlands’’ it is considered a water of the United States without need for further analysis. This categorical inclusion, however, does not alleviate the need for site-specific verification of jurisdiction, such as confirmation of wetland characteristics, whether the wetlands meet the final rule’s definition of ‘‘adjacent wetlands,’’ and other issues typically addressed during a jurisdictional determination process. This rule provides a definition of ‘‘adjacent wetlands’’ that includes wetlands that abut, meaning to touch at least at one point or side of, a water identified in paragraph (a)(1), (2), or (3). Such abutting wetlands need not abut the paragraph (a)(1) through (3) water along the entire length of a delineated wetland boundary to be considered adjacent. Rather, the wetlands need only touch the paragraph (a)(1) through (3) water at one point. In addition, and consistent with the proposal and Riverside Bayview, the final rule does not require surface water exchange between wetlands and the jurisdictional waters they abut to create the jurisdictional link. 474 U.S. at 134. Abutting occurs when the wetland delineated boundary touches the delineated boundary of the paragraph (a)(1) through (3) water, which does not require a direct hydrologic surface connection because not all wetlands have standing or flowing surface water as their wetland hydrology factor. For example, some wetlands may have saturated soils or a high water table, and these are also indicators of wetland hydrology. Abutting occurs at the interface between the adjacent wetland and the paragraph (a)(1) through (3) water. In the field, the agencies would identify the presence of a paragraph (a)(1) through (3) water and delineate the boundary of such water at the lateral extent identified by the ordinary high water mark or high tide line, depending on which is appropriate. See 33 CFR 328.4. The agencies would then delineate the wetlands within the review area to determine whether the wetland boundary touches the paragraph (a)(1) through (3) water boundary at any point or side. The wetlands need not abut for a specific duration in order to be considered abutting. For example, wetlands that abut a tributary only during the wet or rainy season remain adjacent under this final rule. Similarly, if a wetland abuts an intermittent tributary it remains abutting even when water is not present in the tributary. Wetlands abutting an ephemeral stream or other non- jurisdictional feature are non- jurisdictional even if the non- jurisdictional feature maintains jurisdiction between upstream and downstream waters. Some commenters stated that surface connections may not be present or identifiable year-round. Many commenters questioned whether the use of remote tools could identify the necessary connections and stated that field indicators and site-specific verification for wetland connections may be needed. In addition, commenters requested clarification on systems with modifications, such as dikes, levees, and other man-made structures. The agencies modified the final rule language from the proposal in response to many of these comments to provide additional clarity and ease of implementation, while remaining faithful to the overall text, structure, and legislative history of the CWA and the legal principles outlined in Section II.E. Culverts or other structures conveying water through an artificial barrier, such as a levee or a road, can maintain jurisdiction in the final rule if they provide a direct hydrological surface connection between a wetland and a jurisdictional water in a typical year. Where a wetland is physically separated from a tributary by a manmade levee and such artificial structure has a culvert connection through the levee, the culvert is visibly apparent and can be easily observed for efficiency in identifying it as potentially providing a direct hydrologic surface connection. In other locations, pumps may be used to control water levels. In some scenarios, the pumps are continually operating to maintain flow conditions, and in other scenarios, they are turned on only when flood conditions are present. Pumps can move water through the artificial structure or over it. A pump can create a direct hydrologic surface connection in a typical year between paragraph (a)(1) through (3) waters and their adjacent wetlands. Tide gates can also allow for a direct hydrologic surface connection in a typical year between wetlands and the paragraph (a)(1) through (3) water to which they are adjacent under the final rule. As long as a feature present within the artificial structure allows for a direct hydrologic surface connection between the wetland and a paragraph (a)(1) through (3) water in a typical year, the wetland is an adjacent wetland even if flow is not present at the time of observation. The agencies may not assume the presence of such artificial features; rather they may identify such artificial features via on-site observations or remotely using construction design plans, permitting data, state and local information, or levee or drainage district information. As is the case with jurisdictional determinations made under any regulatory regime, site-specific verification may be required in certain instances where remote tools may not be readily available or accurate or in other, often more complex site scenarios. A wetland flooded by a navigable water, on average, once every 100 years would not satisfy the final rule’s ‘‘adjacent wetlands’’ definition. Such inundation via flooding must occur from a paragraph (a)(1) through (3) water at least once in a typical year for purposes of adjacency. The agencies may determine that inundation by flooding or a direct hydrologic surface connection exists during a typical year using, for example, USGS stream gage records, recurrence intervals of peak flows, wetland surface water level VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22316 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations records, visual observation, aerial imagery, flood records, inundation modeling techniques and tools (e.g., Hydrologic Engineering Centers River System Analysis System, or HEC–RAS, or tools available from USGS through their Flood Inundation Mapping program), or engineering design records. The agencies may also need to complete one or more site visits to collect field indicators of inundation. For example, the presence of water marks, sediment and drift deposits, water-stained leaves, or algal mats may indicate that an inundation event has recently occurred. The agencies believe that it is also important to consider weather and climatic conditions, i.e., to review recent precipitation and climate records, to ensure the feature is not being assessed during a period of drought or after a major precipitation or infrequent flood event. Tools for determining whether climatic conditions meet the definition of ‘‘typical year’’ are described in Section III.A.1 of this notice. In addition, under this final rule an adjacent wetland divided by an artificial structure, such as a road or railroad line, is treated as a single wetland and is jurisdictional in its entirety as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. The direct hydrologic surface connection can occur through or over the artificial structure, such as through a culvert, or as is present in some areas, over roads designed to overtop during certain conditions. Without a direct hydrologic surface connection in a typical year, only that wetland (i.e., that portion of the original wetland) which meets the terms of the definition of ‘‘adjacent wetlands’’ under paragraph (c)(1) would be an adjacent wetland, even if there is a subsurface hydrologic connection (e.g., shallow subsurface flow or aquifer) between the wetlands present on either side of the road or other artificial structure. To identify the direct hydrologic surface connection through or over a road or other artificial structure, the agencies may use tools similar to those that are used to identify a direct hydrologic surface connection through an artificial structure, such as a dike. To implement this aspect of the rule as applied to a particular wetland, the agencies will first need to determine whether the wetland is adjacent to a paragraph (a)(1) through (3) water. The agencies will then need to consider the conditions on the ground in order to determine whether the divided parts of the wetland should be considered one adjacent wetland, where it otherwise meets the terms of the definition. For example, if a wetland is present on either side of a road which has a direct hydrologic surface connection via a culvert connecting both parts of the wetland in a typical year, the agencies need not recreate the history of the road construction and what the conditions on the ground were at time of road construction. Rather, the agencies will observe the artificial structure and will note whether the artificial structure allows for a direct hydrologic surface connection such that the wetlands on both sides of the road can connect via surface hydrology in a typical year. If so, then the wetlands are considered one wetland. As a general matter and consistent with longstanding practice, the agencies take a physical separation as they find it. The physical separation will be evaluated in its current form (unless normal circumstances are not present or where there is evidence of unlawful activity or efforts to circumvent jurisdiction, in which case, the separation will be evaluated using other tools to approximate normal circumstances). If a dike is originally designed not to allow for a direct hydrologic surface connection between a paragraph (a)(1) through (3) water and wetlands on the other side of the dike, but later a culvert is added to provide adequate drainage in a typical year or a pump is added to provide flood protection in a typical year, these features create a direct hydrologic surface connection between the jurisdictional water and the wetlands. In this scenario, the wetlands become adjacent wetlands. If a natural feature is modified or changes over time (as when a berm develops over time separating a wetland from a paragraph (a)(1) water) the agencies intend to take the feature as they find it, determine whether it is a natural physical separation, and then consider whether the wetland is adjacent. Pumps are considered to be the ‘‘normal’’ circumstances of the hydrology when they are permanently present and are serviceable. Pumps create adjacency under the final rule when they are permanent features which allow for a direct hydrologic surface connection in a typical year through an artificial structure between a wetland and the paragraph (a)(1) through (3) water. Temporary structures are not subject to the ‘‘take it as they find it’’ principle. Their presence is intended to modify the relationship between the paragraph (a)(1) through (3) water and a wetland for only a limited duration of time. For example, a temporary culvert in place for three months during construction would not allow for a wetland to become adjacent under this rule. Such temporary structures are not considered normal circumstances when considering whether a wetland may be adjacent. For purposes of adjacency under the rule, the entire wetland is considered adjacent if any portion of the wetland meets the terms of the definition under paragraph (c)(1), regardless of the size and extent of the wetland. For example, if a portion of one side of a wetland physically touches a tributary, then the wetland is jurisdictional in its entirety. Determining the entire wetland to be adjacent if any portion of it satisfies the ‘‘adjacent wetlands’’ definition is consistent with longstanding practice. The agencies have found this approach to be simpler and easier to implement in the field than establishing a means of administratively bifurcating wetlands. An adjacent wetland that changes classification (e.g., as defined in Cowardin et al. 1979) within the overall wetland delineated boundary due to landscape position, hydrologic inundation, or other factors, such as changing from salt marsh to brackish to freshwater wetland, is jurisdictional as one adjacent wetland. Certain wetland indicators may not be present year-round in a typical year due to normal seasonal or annual variability. Adjacent wetlands under this final rule include wetlands with alternating hydroperiods and seasonal wetlands with vegetation shifts. Consistent with the agencies’ longstanding practice, the delineated boundary of a seasonal wetland remains constant, even though all three delineation factors may not be apparent year-round. This approach acknowledges seasonal variation in visible wetland factors as well as the variation in hydrology and climatic conditions across the country. For example, seasonal wetlands with vegetation shifts may display hydrophytic vegetation abutting another water of the United States throughout the year except during the dry season. Also, wetlands with alternating hydroperiods that abut another water of the United States in the arid West may have hydrology present only for three months while otherwise similar wetlands in the Southeast may have hydrology present for nine months. Wetland hydrology indicators that require direct observation of surface water or saturated soils are often present only during the normal wet portion of the growing season and may be absent during the dry season. The wetland hydrology factor is often much more variable on short time scales than the hydrophytic vegetation and hydric soil factors, especially in seasonal wetlands VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22317 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations like some bottomland hardwood forests which can lack flooding or saturation. Some commenters noted that a ditch constructed in an adjacent wetland can drain water and create a zone of influence which may render the entire wetland non-jurisdictional under the proposed rule. Under this final rule, a wetland must first be considered adjacent to a paragraph (a)(1) through (3) water before a ditch constructed in it may be considered a tributary. Therefore, the wetland may still be jurisdictional as an adjacent wetland to the paragraph (a)(1) through (3) water under (c)(1) even if the ditch’s zone of influence reduces the extent of the wetland around the ditch, as the wetland’s jurisdictional status is not directly tied to the ditch. Historical and current aerial photographs, NWI maps, NRCS soils maps, and other similar resources may indicate whether a ditch was constructed in an adjacent wetland. There may also be certain instances where a ditch has lawfully drained a wetland. H. Waters and Features That Are Not Waters of the United States 1. What are the agencies finalizing? In paragraph (b) of the final rule, the agencies are codifying twelve exclusions from the definition of ‘‘waters of the United States.’’ Many of the exclusions reflect longstanding agency practice and are expressly included in the final rule to ensure predictability, as the agencies continue to implement them in the future. Two of the exclusions (waste treatment systems and prior converted cropland) have been expressly included in regulatory text for decades, but the agencies are defining them for the first time to enhance implementation clarity. The majority of paragraph (b) has been finalized as proposed, but as discussed in the next subsection, the agencies have made some changes to what they proposed in response to public comments and additional analysis of the proposed regulatory text. For example, in the final rule the agencies split ephemeral surface features and diffuse stormwater runoff and overland sheet flow into separate exclusions for added clarity. Waters and features that are excluded under paragraph (b) of the final rule cannot be determined to be jurisdictional under any of the categories in the rule under paragraph (a). Any water not enumerated in paragraphs (a)(1) through (4) is not a ‘‘water of the United States.’’ In addition to this overarching exclusion, the final rule includes additional exclusions to provide more specificity for certain common landscape features and land uses that are more appropriately regulated, if at all, under the sovereign authorities of States and Tribes. For example, the final rule excludes groundwater from the definition of ‘‘waters of the United States,’’ including groundwater drained through subsurface drainage systems, reflecting the agencies’ longstanding practice. The rule creates a new exclusion for ephemeral features, including ephemeral streams, swales, gullies, rills, and pools, and excludes diffuse stormwater run-off and directional sheet flow over upland. Adhering more closely to the agencies’ original interpretation of the CWA, the rule excludes ditches from the definition of ‘‘waters of the United States’’ except those ditches identified as jurisdictional under paragraph (a)(1) or (2) and those ditches constructed in adjacent wetlands that do not meet the flow conditions of the definition of ‘‘tributary’’ but that meet the conditions of paragraph (a)(4). The agencies are retaining an exclusion for prior converted cropland but are defining it for the first time in regulatory text. The agencies are also retaining an exclusion for waste treatment systems. The final rule also excludes artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease. In addition, the rule excludes artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non- jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6). The final rule excludes water- filled depressions constructed or excavated in upland or in non- jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel. The agencies also have excluded stormwater control features constructed or excavated in upland or in non- jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off. Also excluded in the final rule are groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters. As discussed in Section III.G, the agencies have defined ‘‘upland’’ in paragraph (c)(14) and specify in the regulatory text that certain water features constructed or excavated in upland or in non-jurisdictional waters are excluded from the definition of ‘‘waters of the United States.’’ In the final rule, ‘‘upland’’ means any land area that under normal circumstances does not satisfy all three wetland characteristics identified in the definition of ‘‘wetlands’’ (hydrology, hydrophytic vegetation, hydric soils) and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water. The term is used in six of the exclusions listed in paragraph (b), and the definition is intended to provide additional clarity as the agencies implement the exclusions while also informing the application of the ‘‘adjacent wetlands’’ definition. See Section III.G of this notice. The agencies received a broad range of comments on the proposed rule’s list of exclusions, some stating that the exclusions provide necessary clarity while allowing the regulated community to plan investments in infrastructure and other projects with increased regulatory certainty and predictability. Others expressed support for the new exclusion in paragraph (b)(1), stating that it clarified that if a water is not jurisdictional under paragraph (a), it is not subject to CWA jurisdiction. Other commenters supported the inclusion of definitions for prior converted cropland and waste treatment systems, acknowledging that the new definitions help clarify those longstanding exclusions. Some commenters opposed many of the exclusions, arguing that they restrict CWA jurisdiction over too many ecologically important waters. Some commenters argued that prior converted cropland and waste treatment systems should not be excluded from CWA jurisdiction, stating that nothing in the CWA supports the agencies’ longstanding positions. The agencies have considered these diverse comments and have generally adhered to the approach set forth in the proposed rule, while making some adjustments to the regulatory text to address certain questions that were raised and to improve the clarity of the regulatory text, as discussed in the next subsection. 2. Summary of Final Rule Rationale and Public Comment Many of these exclusions generally reflect the agencies’ current and historic practice, and their inclusion in the final rule furthers the agencies’ goal of providing greater clarity over which waters are and are not regulated under VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22318 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations the CWA. Just as the categorical assertions of jurisdiction over tributaries, lakes, ponds, and impoundments of jurisdictional waters, and adjacent wetlands simplify the jurisdictional determination process, the categorical exclusions likewise simplify the process. In certain circumstances, they also reflect the agencies’ determinations of the limits of their jurisdiction under the CWA based on the text of the statute, Supreme Court guidance, and the agencies’ longstanding practice and technical judgment that certain waters and features are not subject to regulation under the CWA. These waters are or could be subject to State or tribal jurisdiction, as the CWA recognizes that States and Tribes can regulate more broadly than the Federal government. Some State comments on the proposed exclusions indicated that the exclusions uphold State sovereignty to administer and allocate water resources and preserve traditional State and local authority over private property. Some commenters also stated that the proposed exclusions are consistent with the principles of cooperative federalism under the CWA. For example, a commenter asserted that the types of waters proposed for exclusion are all waters that would traditionally fall under State jurisdiction and should remain subject to State regulation under the framework for cooperative federalism set forth in the CWA. The agencies agree that the CWA’s cooperative federalism approach to protecting water quality is important and continue to reflect that approach in the exclusions finalized in this rule. Importantly, the agencies’ final rule clarifies that all waters and features identified in paragraph (b) as non- jurisdictional would not be waters of the United States. As stated in paragraph (b)(1) of the final rule, waters or water features not enumerated in paragraphs (a)(1) through (4) would not be a water of the United States. The agencies have taken this approach to avoid suggesting that but for an applicable exclusion, such features could be jurisdictional. This approach in the final rule comprehensively excludes all waters and features that the agencies have not included as waters of the United States under paragraph (a) of the rule. Different features are called different names in different parts of the country, so this approach is also intended to eliminate the risk of confusion. The agencies note that the examples of features in each exclusion are illustrative of the types of features covered under each exclusion. Groundwater In paragraph (b)(2) of the final rule, the agencies exclude groundwater, including groundwater drained through subsurface drainage systems. The agencies have never interpreted waters of the United States to include groundwater, and they continue that practice through this final rule by explicitly excluding groundwater. The agencies also note that groundwater, as opposed to subterranean rivers or tunnels, cannot serve as a connection between upstream and downstream jurisdictional waters. For example, a losing stream that flows to groundwater without resurfacing does not meet the definition of ‘‘tributary’’ because it does not contribute surface water flow to a downstream jurisdictional water. However, a subterranean river does not sever jurisdiction of the tributary if it contributes surface water flow in a typical year to a downstream jurisdictional water, as described in Section III.A.3, even though the subterranean river itself is not jurisdictional. Many commenters cited legislative history in the development of the Act, the agencies’ implementing regulations, and case law as evidence of Congressional intent in support of the groundwater exclusion. Commenters noted that CWA legislative history demonstrates that Congress clearly did not intend to include groundwater as ‘‘waters of the United States,’’ because Congress did not support a proposed amendment to include groundwater as waters of the United States. Many commenters stated that all subsurface water should be non-jurisdictional. Other commenters stated that groundwater is not a ‘‘navigable water’’ or a ‘‘channel of interstate commerce’’ and therefore should be excluded. Conversely, several commenters stated that groundwater is important to commerce, because it is essential as a source of drinking water for much of the population. Other commenters stated that groundwater should be jurisdictional, based on concerns regarding pollution moving to or from shallow subsurface waters. Some commenters stated that groundwater, including shallow subsurface water, could serve as a conduit for discharge of pollutants to surface water. The agencies agree with those commenters who stated that nothing in the language of the CWA or its legislative history, Supreme Court interpretations, or past agency practices support the inclusion of groundwater, including groundwater drained through subsurface drainage systems, in the definition of ‘‘waters of the United States.’’ The agencies disagree with other commenters’ assertion that groundwater should be included in the definition of ‘‘waters of the United States.’’ The agencies acknowledge the importance of groundwater as a resource and its role in the hydrologic cycle. But its regulation is most appropriately addressed by other Federal, State, tribal, and local authorities. Therefore, consistent with the agencies’ longstanding practice, the final rule clarifies that groundwater is non- jurisdictional. This includes shallow subsurface water and groundwater that is channelized in subsurface systems, like tile drains used in agriculture. The agencies acknowledge that, in certain circumstances, pollutants released to groundwater can reach surface water resources. However, the statutory reach of ‘‘waters of the United States’’ must be grounded in a legal analysis of the limits on CWA jurisdiction that Congress intended by use of the term ‘‘navigable waters,’’ and an understanding and application of the limits expressed in Supreme Court opinions interpreting that term. This final rule does that, while also supporting the agencies’ goals of providing greater clarity, certainty, and predictability for the regulated public and regulators. While the final rule excludes groundwater from regulation, many States include groundwater in their definitions of ‘‘waters of the State’’ and therefore may subject groundwater to State regulation. Indeed, the CWA incentivizes State protection of groundwater; for example, grants under CWA section 319 may implement management programs which will carry out groundwater quality protection activities as part of a comprehensive nonpoint source pollution control program. 33 U.S.C. 1329(h)(5)(D). CWA section 319(i) directs the EPA Administrator to make grants to States for the purpose of assisting States in carrying out groundwater quality protection activities which the Administrator determines will advance the State toward implementation of a comprehensive nonpoint source pollution control program. Such activities include research, planning, groundwater assessment, demonstration programs, enforcement, technical assistance, education, and training to protect the quality of groundwater and to prevent contamination of groundwater from nonpoint sources of pollution. 33 U.S.C 1329(i). In addition, groundwater quality is regulated and protected through several other legal mechanisms, including the Safe VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22319 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 56 For additional description of these programs, see https://www.epa.gov/npdes/interpretative- statement-releases-pollutants-point-sources- groundwater. Drinking Water Act, the Resource Conservation and Recovery Act, and various State and local laws.56 Ephemeral Features and Diffuse Stormwater Run-Off In paragraph (b)(3), the final rule excludes ephemeral features, including ephemeral streams, swales, gullies, rills, and pools. In paragraph (b)(4), the rule excludes diffuse stormwater run-off and directional sheet flow over upland. Such features are not jurisdictional under the terms of paragraph (a) in the final rule or its definitions in paragraph (c). They are specifically excluded in the final rule for additional clarity. The final rule differs from the proposed rule, as (b)(3) and (b)(4) were combined into one category of exclusions in the proposal. The agencies believe that separating the exclusions into two categories, as they have done for the final rule, provides greater clarity. The separation does not have a practical effect on or substantively change the types of waters and features that the final rule excludes compared to the proposed rule. As described in detail in Section III.A.3, the agencies have revised the proposed rule to clarify that while ephemeral features are not waters of the United States, a tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized ephemeral feature, such as an ephemeral stream or gully. However, if an upstream reach is connected to the downstream reach only by diffuse stormwater runoff or directional sheet flow over upland, the upstream reach is not jurisdictional under the final rule. Providing additional clarity in the paragraph (b) exclusions helps to highlight that only some excluded features are capable of providing a channelized surface water connection between upstream and downstream perennial or intermittent waters. Under the final rule, ephemeral features are not jurisdictional and do not become jurisdictional even if they maintain jurisdiction of relatively permanent upstream waters by conveying surface water from those waters to downstream jurisdictional waters in a typical year. Some commenters supported the ephemeral features exclusion as being consistent with the CWA, Commerce Clause, and case law, particularly the plurality opinion in Rapanos. For example, one commenter indicated that the proposed exclusion aligned with CWA section 101(b) and, by avoiding jurisdiction over primarily dry features, did not significantly alter the Federal- State framework. Other commenters expressed concern that if they are not jurisdictional, ephemeral features could be subject to uncontrolled pollution or filled, and some commenters emphasized the potential adverse impacts to downstream jurisdictional waters into which ephemeral features flow. By defining perennial and intermittent tributaries of traditional navigable waters as jurisdictional and defining ephemeral features as non- jurisdictional, and by including (b)(3) and (b)(4) exclusions explicitly emphasizing the non-jurisdictional status of ephemeral features and diffuse stormwater run-off, the agencies are balancing Congress’ intent to interpret the term ‘‘navigable waters’’ more broadly than the classical meaning of that term and the notion that nothing in the legislative history of the Act ‘‘signifies that Congress intended to exert anything more than its commerce power over navigation.’’ SWANCC, 531 U.S. at 168 n.3. The exclusions in paragraphs (b)(3) and (b)(4) and the final rule’s limitation of jurisdiction to perennial and intermittent rivers and streams most appropriately balances the Federal government’s interest in regulating the nation’s navigable waters with respecting State and Tribal land use authority over features that are only episodically wet during and/or following precipitation events. See, e.g., Rapanos, 547 U.S. at 734 (Scalia, J., plurality) (identifying ‘‘ephemeral streams’’ and ‘‘directional sheet flow during storm events’’ as beyond the scope of CWA jurisdiction). Some commenters raised concerns with potential adverse impacts to downstream jurisdictional waters from discharges to non-jurisdictional ephemeral features. The agencies believe that a CWA section 402 permittee currently discharging to a jurisdictional water that becomes non- jurisdictional under this final rule would likely remain subject to the requirements of the Act. This specific concern was raised in Rapanos, that enforcement of section 402 could be frustrated by ‘‘polluters . . . evad[ing] permitting requirement . . . by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters.’’ Id. at 742–43. In the words of Justice Scalia, ‘‘That is not so.’’ Id. New or continuing discharges, whether illicit or not, could be subject to sections 301 and 402 of the Act if the discharge is conveyed from a point source to a ‘‘water of the United States.’’ The agencies view ephemeral features, such as arroyos or ditches, as potential conveyances of discharges of pollutants from point sources subject to NPDES permitting requirements. So too, the agencies believe, did Justice Scalia. He referred to ‘‘channels’’—a term used in the definition of ‘‘point source’’ at 33 U.S.C. 1362(14)—as ‘‘ephemeral streams,’’ ‘‘dry arroyos in the middle of the desert,’’ and ‘‘manmade drainage ditches’’ when characterizing the types of features that he believed stretched the meaning of the ‘‘term ‘waters of the United States’ beyond parody.’’ Id. at 734. Additional discussion of the final rule’s treatment of ephemeral features is provided in Section III.A.3 of this notice. Ditches The final rule’s ditch exclusion in paragraph (b)(5) is intended to provide greater clarity for the regulated public and to be more straightforward for agency staff to implement than current practice. The agencies have incorporated a clear statement in the final rule that all types of ditches would be excluded except where they meet the conditions of paragraph (a)(1) or (2) of the final rule or where, in limited instances, they meet the conditions of paragraph (c)(1). Further, as discussed in Section III.D and Section III.E of this notice, the final rule clarifies that ditches are tributaries under paragraph (a)(2) where they relocate a tributary, are constructed in a tributary, or are constructed in an adjacent wetland, so long as the ditch satisfies the flow conditions of the ‘‘tributary’’ definition. Many States, regional groups, and national associations that commented during the Federalism consultation as part of development of the proposed rule and during the agencies’ general outreach efforts noted that the definition of ‘‘waters of the United States’’ should exclude ditches. The agencies received further comments on the proposed rule’s category of jurisdictional ditches and the exclusion for all other ditches. Some commenters argued that all ditches should be jurisdictional if they convey any volume of water to a covered water, however infrequent or insubstantial, while others took the opposite view. As discussed in Sections III.D. and III.E., the approach adopted in this final rule reasonably balances the exclusion of features that are fundamental to State, tribal, and local land use planning while respecting the need to preserve jurisdiction over certain ditches. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22320 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 57 Memorandum to the Field on Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and section 404 of the Clean Water Act, February 25, 2005, available at https:// usace.contentdm.oclc.org/utils/getfile/collection/ p16021coll11/id/2508. Prior Converted Cropland The agencies are finalizing the prior converted cropland exclusion in paragraph (b)(6) and adding a definition of ‘‘prior converted cropland’’ in paragraph (c)(9). The definition of ‘‘prior converted cropland’’ clarifies that the exclusion is no longer applicable when the cropland is abandoned and the land has reverted to wetlands, as that term is defined in paragraph (c)(16). Under this final rule, prior converted cropland is considered abandoned if it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. Agricultural purposes include land use that makes the production of an agricultural product possible, including but not limited to grazing and haying. Additional discussion on agricultural purposes is provided below. This final rule also clarifies that cropland that is left idle or fallow for conservation or agricultural purposes for any period or duration of time remains in agricultural use (i.e., it is used for, or in support of, agriculture purposes), and therefore maintains the prior converted cropland exclusion. The agencies conclude that this clarification will ensure that cropland enrolled in long-term and other conservation programs administered by the Federal government or by State and local agencies that prevents erosion or other natural resource degradation does not lose its prior converted cropland designation as a result of implementing conservation practices. In 1993, the agencies categorically excluded prior converted cropland from the definition of ‘‘waters of the United States.’’ 58 FR 45034–36 (August 25, 1993). As further explained below, in keeping with the Food Security Act of 1985 (FSA), the 1993 preamble defined prior converted cropland as ‘‘areas that, prior to December 23, 1985, were drained or otherwise manipulated for the purpose, or having the effect, of making production of a commodity crop possible [and that are] inundated for no more than 14 consecutive days during the growing season.’’ 58 FR 45031. As explained in detail in the 1993 preamble, due to the degraded and altered nature of prior converted cropland, the agencies determined that such lands should not be treated as jurisdictional wetlands for purposes of the CWA because regulating such lands does not further the objective of the Act. 58 FR 45032. The 1993 preamble also set out a mechanism to ‘‘recapture’’ prior converted cropland into the section 404 program when the land has been abandoned and wetland features return. 58 FR 45034. This approach is consistent with the principles in the 1990 Corps Regulatory Guidance Letter 90–7. Although included in the 1993 preamble and Regulatory Guidance Letter 90–7, these principles have not been incorporated into the text of any promulgated rule until now. This rule therefore represents the first time the agencies are promulgating regulatory language to clarify the meaning of ‘‘prior converted cropland’’ for CWA purposes, the application of the exclusion, and a recapture mechanism based on abandonment and reversion to wetlands. Historically, the agencies have attempted to create consistency between the CWA and the FSA wetlands conservation provisions for prior converted cropland. The agencies continue to believe that consistency across these programs is important for the regulated community (see 58 FR 45033), and therefore are continuing to exclude prior converted cropland from the definition of ‘‘waters of the United States.’’ By incorporating the abandonment principles from the 1993 preamble and providing examples of ‘‘agricultural purposes,’’ this final rule remains consistent with the concepts underlying the FSA but differs in implementation from certain aspects of USDA’s current wetlands compliance authority. Incorporating the abandonment principle, as opposed to a pure ‘‘change in use’’ policy (described below), is important for the agencies to appropriately manage certain wetland resources while providing better clarity to the agricultural community. When the 1993 preamble was published, the abandonment principle was consistent with USDA’s implementation of the FSA. Three years later, the 1996 FSA amendments modified the abandonment principle and incorporated a ‘‘change in use’’ policy. See Public Law 104–127, 110 Stat. 888 (1996). Under the new policy, prior converted cropland would continue to be treated as such even if wetland characteristics returned because of lack of maintenance of the land or other circumstances beyond the owner’s control, ‘‘as long as the prior converted cropland continues to be used for agricultural purposes.’’ H.R. 2854, Conf. Rep. No. 104–494, at 380 (1996). In 2005, the Corps and NRCS issued a joint ‘‘Memorandum to the Field’’ (the 2005 Memorandum) in an effort to again align the CWA section 404 program with the FSA by adopting the amended FSA’s change in use policy. The 2005 Memorandum provided that, a ‘‘certified [prior converted] determination made by [USDA] remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural use, the [prior converted cropland] determination is no longer applicable, and a new wetland determination is required for CWA purposes.’’57 The 2005 Memorandum did not clearly address the abandonment principle that the agencies had been implementing since the 1993 rulemaking. The change in use policy articulated in the 2005 Memorandum was also never promulgated as a rule and was declared unlawful by one district court because it effectively modified the 1993 preamble language without any formal rulemaking process. See New Hope Power Co. v. U.S. Army Corps of Eng’rs, 746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010). Implementing the 2005 Memorandum created other challenges for the agencies and the regulated community. For example, because the 2005 Memorandum did not clearly address whether or how the abandonment principles should be applied in prior converted cropland cases, neither the agencies nor the regulated community could be certain which approach would be applied to a specific case. The agencies received many public comments on the prior converted cropland exclusion, with some commenters noting that the exclusion will provide clarification needed to protect prior converted cropland that may be subject to flooding and to other natural occurrences that result in wet or saturated fields. The agencies also received public comments on both the abandonment principle and the change in use analysis. Some commenters supported the abandonment principle, stating, for example, that prior converted cropland should lose its status only when the land is abandoned and the area reverts back to wetland. Other commenters requested that the agencies finalize the change in use analysis, as articulated in the 2005 Memorandum. The agencies have considered these comments and for the reasons provided herein are finalizing the abandonment principle as proposed and are not adopting the change in use approach. The agencies received many comments in support of the term ‘‘for or in support of, agricultural purposes’’ and recommendations as to how the term should be interpreted. Commenters VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22321 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations requested that the agencies provide additional examples of agricultural purposes, including, but not limited to, idling land for conservation uses (e.g., habitat; pollinator and wildlife management; and water storage, supply, and flood management); irrigation tailwater storage; crawfish farming; cranberry bogs; nutrient retention; and idling land for soil recovery following natural disasters like hurricanes and drought. The uses listed above, in addition to crop production, haying, and grazing, fall within the term ‘‘agricultural purposes’’ and, if documented, may maintain the prior converted cropland exclusion. Conservation practices, including those required or supported by USDA, State, and local programs (including recognized private sector programs that partner with government programs or that can provide verifiable documentation of participation) are critical to the success of agricultural systems across the country. Conservation practices and programs also are conducted ‘‘for or in support of agricultural purposes’’ and are appropriate to maintain the prior converted cropland exclusion. The agencies also received public comment on the type of documentation that a landowner should maintain to demonstrate that cropland has been used ‘‘for or in support of, agricultural purposes.’’ Commenters suggested the use of aerial photographs, topographical maps, cultivation maps, crop expense or receipt records, field- or tract-specific grain elevator records, and other records generated and maintained in the normal course of doing business. The agencies agree that these types of documents and other documentation reasonably establishing ‘‘agricultural purposes’’ are appropriate to demonstrate that the prior converted cropland exclusion applies to a certain field or tract of land. Finally, the agencies received public comments on whether the five-year timeframe for maintaining agricultural purposes is appropriate. Some commenters supported the five-year timeframe. Other commenters thought that five years was too long to avoid federal jurisdiction if wet cropland was providing some ecological or habitat benefit that should be maintained. Other commenters thought that the five-year timeframe was too short to account for unforeseen circumstances that could leave cropland idle for longer periods of time (e.g., bankruptcy, the probate and estate administration process, natural disasters), and recommended that the agency adopt a seven, ten, or twenty- year timeframe. Some commenters specifically requested that the agencies allow more than five years when drought or flood conditions prevent cultivation, planting or harvest. The agencies have considered these comments and conclude that a five-year timeframe for maintaining agricultural purposes is reasonable and consistent with the 1993 preamble (58 FR 45033) and with the five-year timeframe regarding validity of an approved jurisdictional determination (2005 Corps Regulatory Guidance Letter (RGL) 05–02). The five-year timeframe is longstanding in the CWA section 404 program and will be familiar to landowners and regulators alike, increasing clarity in implementation. The agencies are finalizing the rule with the five-year timeframe, as proposed, but as described in the next subsection, the agencies will work closely with USDA, and will consider documentation from USDA, NOAA, FEMA, or other Federal or State agencies to determine if the land was used for or in support of agricultural purposes in the immediately preceding five years to evaluate whether cropland has in fact been abandoned. The agencies consider rulemaking to be appropriate here in order to clarify the definition of ‘‘prior converted cropland’’ and to provide regulatory certainty over when such lands are no longer eligible for the CWA exclusion. This final rule provides much needed clarity about the prior converted cropland exclusion and how wetlands can be recaptured into CWA jurisdiction through the abandonment test. In addition to finalizing the exclusion as proposed, the Corps will withdraw the 2005 Memorandum simultaneous with the effective date of this rule. Artificially Irrigated Areas, Artificial Lakes and Ponds, and Water-Filled Depressions Paragraph (b) also excludes from waters of the United States under this final rule: •Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease (paragraph (b)(7)); •Artificial lakes and ponds, including water storage reservoirs and farm, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) (paragraph (b)(8)); and •Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel (paragraph (b)(9)). Paragraphs (b)(7), (8), and (9) of the final rule identify features and waters that the agencies have generally excluded from the definition of ‘‘waters of the United States’’ in previous preambles since 1986 (see, e.g., 51 FR 41206, 41217 (November 13, 1986) and 53 FR 20764–65 (June 6, 1988)). The agencies have codified these longstanding exclusions to further the agencies’ goals of providing greater clarity and predictability for the regulated public and the regulators. Several of these exclusions use the phrase ‘‘upland.’’ In keeping with the goal of providing greater clarity, the agencies have included in the final rule a definition of ‘‘upland’’ in paragraph (c)(14). It is important to note that a water of the United States is not considered ‘‘upland’’ just because it lacks water at a given time. Similarly, an area may remain ‘‘upland’’ even if it is wet sporadically or after a rainfall or flood event. In addition, the agencies recognize that excluded water features may be constructed or excavated in non- jurisdictional ponds, wetlands, or other non-jurisdictional features. Therefore, the agencies added the phrase ‘‘non- jurisdictional waters’’ to some of these exclusions to provide greater clarity and to confirm that these features can be constructed or excavated in a non- jurisdictional water, such as an isolated pond or wetland, while continuing to be excluded from federal jurisdiction. The upland requirement does not apply to all exclusions under paragraph (b). For those waters or features in paragraph (b) of this final rule that do contain the stipulation that they must be constructed or excavated in upland or in non-jurisdictional waters to be excluded, the agencies intend that these features be constructed or excavated wholly in upland or in non- jurisdictional waters. For example, construction activities that enlarge a water of the United States beyond its current boundaries are not constructed wholly in upland. Where portions of a new or modified water feature are built in a jurisdictional water, the agencies would not view the new or modified feature as having been constructed or excavated wholly in upland or in non- jurisdictional waters, and therefore not subject to the exclusion. But where a stock watering pond, for example, is developed in a spring that is non- jurisdictional under this final rule, that pond will be considered by the agencies to have been constructed wholly in VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22322 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations upland and/or non-jurisdictional waters. Even if a feature is not constructed or excavated wholly in upland or in non-jurisdictional waters and meets the definition of ‘‘waters of the United States,’’ it may be otherwise excluded under another part of paragraph (b). The agencies note, however, that the mere interface between the excluded feature constructed or excavated wholly in upland and a jurisdictional water does not make that feature jurisdictional. For example, a ditch constructed or excavated wholly in upland that connects to a tributary would not be considered a jurisdictional ditch. The connection to a jurisdictional water does not eliminate applicability of a paragraph (b) exclusion conditioned by the upland or non-jurisdictional waters language. To avoid any confusion in implementation, this is why the agencies have not included the term ‘‘wholly’’ in the final regulatory text. Finally, an excluded feature under the final rule that develops wetland characteristics within the confines of the non-jurisdictional water or feature remains excluded from the definition of ‘‘waters of the United States,’’ with the exception in limited circumstances of wetlands that develop in ditches constructed in adjacent wetlands, as discussed in Section III.G. Many commenters were in favor of the proposed exclusion under (b)(6) of the proposed rule, now under (b)(7), for artificially irrigated areas. A few commenters were opposed to the exclusion entirely, and some commenters were opposed to expanding the exclusion for other crops and/or aquaculture. Some commenters cited the need for clarity as to whether the listed crops were the only ones covered under the exclusion. After considering the comments received, the agencies have modified this exclusion in the final rule to clarify their intent that it is not limited to rice and cranberry production and applies more generally to ‘‘agricultural production.’’ The references to cranberries and rice in the proposed rule were examples and were not an exhaustive list of crops to which the exclusion would apply. When evaluating an area to determine whether it meets the exclusion, the focus should be on whether the area is artificially irrigated or flooded for the purpose of agricultural production and on whether it would revert to upland if the irrigation ceases. Paragraph (b)(8) of the final rule provides that artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, are excluded from the definition of ‘‘waters of the United States’’ so long as these features are constructed or excavated in upland or in non-jurisdictional waters, and so long as these features are not impoundments of jurisdictional waters meeting the conditions of paragraph (c)(6). Many commenters provided edits and additions to the list of water features included in paragraph (b)(8). However, the agencies did not intend to provide an exhaustive list of features that are excluded under paragraph (b)(8) and have determined that any feature that meets the conditions of paragraph (b)(8) will be non-jurisdictional under this rule. The agencies modified the proposed exclusion for artificial lakes and ponds to clarify their intent. As drafted in the proposed rule, the exclusion unintentionally would have been narrower than under the 1980s regulations. For example, when a farm pond is constructed in upland and connected via a ditch also constructed in upland to divert flow from a tributary and the farm pond does not connect back into the tributary system, it has been longstanding agency practice that the farm or stock pond is non- jurisdictional, similar to irrigation ditches which do not connect back into the tributary network. The pond’s source of water is the tributary and serves to provide water for irrigation, livestock, and other agricultural uses. Because such ponds do not contribute surface water flow to a downstream paragraph (a)(1) water, they have not been jurisdictional under historic practice and are not jurisdictional under this final rule. Another example involves a stock watering pond developed in a non-jurisdictional spring. If that pond has a spillway that creates a potential surface water connection to a nearby stream, the pond has traditionally been excluded from CWA jurisdiction. This final rule adopts that longstanding position. In the final rule, the agencies are clarifying that artificial features including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds are not jurisdictional unless they are impoundments of jurisdictional waters meeting the conditions of paragraph (c)(6), as discussed in Section III.F of this notice. The agencies acknowledge that many artificial lakes and ponds may have been created by impounding other waters. The text of the final rule clarifies that artificial lakes and ponds that also meet the conditions of a jurisdictional impoundment under paragraph (c)(6) are not excluded under paragraph (b)(8). However, consistent with longstanding practice, when an applicant receives a permit to impound a water of the United States in order to construct a waste treatment system (as excluded under paragraph (b)(12)), under this final rule the agencies are affirmatively relinquishing jurisdiction over the resulting waste treatment system as long as it is used for this permitted purpose. Also consistent with longstanding practice, waters upstream of the waste treatment system are still considered jurisdictional where they meet the final rule’s definition of ‘‘waters of the United States.’’ The (b)(8) exclusion for artificial lakes and ponds uses the term ‘‘constructed or excavated’’ in the final rule, while the proposed rule used the term ‘‘constructed.’’ The agencies do not intend for this change to alter the meaning of the exclusion from proposal. The agencies believe that this edit provides clarity to the public about how excluded artificial lakes and ponds can be created—some are constructed through dams, dikes, or barriers, while some are excavated pits. Excavation can entail construction, and construction can entail excavation, but the agencies have decided to use both terms in the final rule for added clarity. Several commenters stated that artificial lakes and ponds should be excluded regardless of whether they are located either wholly or partially in upland, and that the (b)(8) exclusion should extend to artificial lakes and ponds not constructed or excavated in upland. A few commenters noted that farmers and ranchers often determine the location of farm and stock ponds based on topography, which will typically result in the construction of such features in low areas that may have some characteristics of wetlands or a natural ephemeral feature. One commenter noted that many artificial lakes or ponds are isolated features, and that their connectivity to waters of the United States rather than their relationship to upland should be the primary factor in determining jurisdiction. The final rule continues to require an artificial lake or pond to be constructed or excavated wholly in upland or in non-jurisdictional waters to be considered excluded under (b)(8). This reflects the agencies’ longstanding policy, as discussed above with the stock watering pond example. Artificial lakes and ponds constructed or excavated partially in uplands or in non-jurisdictional waters and partially in jurisdictional waters are jurisdictional if such lakes and ponds meet the conditions of paragraph (c)(6). The agencies are concerned that if only VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22323 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations part of an artificial lake or pond need be in upland, the exclusion could be inappropriately applied to waters where just a small portion is constructed in upland. The agencies again note that the mere interface between the excluded lake or pond otherwise constructed or excavated wholly in upland and a jurisdictional water does not make that feature jurisdictional. For example, an artificial lake or pond that meets the conditions of paragraph (b)(8) and that connects to a tributary would not be considered jurisdictional. With respect to artificial lakes and ponds that are constructed in isolated or ephemeral features, the agencies modified the exclusion to make clear that artificial lakes or ponds constructed or excavated in non-jurisdictional features are excluded. Paragraph (b)(9) of the final rule excludes water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel. In this final rule, the agencies have modified this exclusion from the proposal. In the proposed rule, such depressions would have been excluded where they are ‘‘created in upland,’’ but in the final rule such depressions are excluded where they are ‘‘constructed or excavated in upland or in non- jurisdictional waters.’’ The change from ‘‘created’’ to ‘‘constructed or excavated,’’ as discussed above, is not meant to change the meaning or applicability of the exclusion from the proposed rule, but rather is intended to add clarity to the regulated public about how such excluded water-filled depressions can be created. Aside from this clarifying change, the agencies are finalizing this exclusion as it was proposed. In the final rule, this exclusion clarifies longstanding practice reflected in the agencies’ 1986 and 1988 preambles, 51 FR 41206, 41217 (November 13, 1986); 53 FR 20764–65 (June 6, 1988) and includes several refinements to the language in those preambles. In addition to construction activity, the agencies have also reflected in the final rule an exclusion for water- filled depressions created in upland incidental to mining activity. This is consistent with the 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand, or gravel, and the agencies believe there is no need to distinguish between features based on whether they are created by construction or mining activity. Several commenters supported the (b)(9) exclusion, because such water- filled depressions are often needed for facility management but are not part of the tributary system and are not natural waters. Some commenters opposed the exclusion, stating that the exclusion benefited mining companies and would allow mining activities to negatively impact water quality. Other commenters stated that the exclusion should be expanded to include water-filled depressions constructed or excavated incidental to other activities such as silviculture, or incidental to all activities, asserting that the agencies should not have singled out specific industries in the exclusion. With respect to expanding the exclusion to encompass additional industries or activities, the agencies note that the (b)(9) exclusion is not the only one that addresses artificial waters. Paragraph (b) of the final rule excludes a number of artificial features not limited to specific industries. In addition, CWA section 404(f) exempts a number of discharges associated with certain activities in jurisdictional waters from the requirement to obtain a section 404 permit, including normal farming, ranching, and silviculture activities as part of an established operation. 33 U.S.C. 1344(f)(1)(A). Some commenters wanted the (b)(9) exclusion to be expanded so that once a water-filled depression was excluded, it remained excluded for CWA section 404 purposes. The 1986 and 1988 preambles stated that these depressions were excluded ‘‘unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.’’ (51 FR 41206, 41217 (November 13, 1986); 53 FR 20764–65 (June 6, 1988)). The agencies proposed that such water-filled depression would remain excluded, which represented a change from the 1986 and 1988 preamble language. After further consideration, and after considering comments received, the agencies have concluded that once a feature subject to the (b)(9) exclusion is no longer used for the original purpose for which it was excluded, it no longer qualifies for the (b)(9) exclusion. This is consistent with the approach to other exclusions, such as waste treatment systems and artificially irrigated areas, and reaffirms the agencies’ longstanding practice regarding this exclusion. In many cases, even if the (b)(9) exclusion may no longer apply to a feature, the feature may still remain non-jurisdictional because it does not meet the conditions of paragraphs (a)(1) through (4) and thus is excluded under paragraph (b)(1). Stormwater Control Features In paragraph (b)(10) of the final rule, the agencies exclude stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff. Although stormwater control features are not specifically included in the list of waters that the agencies consider to be generally non- jurisdictional per the 1986 and 1988 preamble language, 51 FR 41206 (November 13, 1986) and 53 FR 20764 (June 6, 1988), the agencies’ longstanding practice is to view stormwater control features that are not built in waters of the United States as non-jurisdictional. Conversely, the agencies view some relatively permanent bodies of water, such as channelized streams with intermittent or perennial flow, as jurisdictional even when used as part of a stormwater management system. Nothing in this final rule changes the agencies’ longstanding practice. Rather, this exclusion clarifies the appropriate limits of jurisdiction relating to these systems. A key element of the exclusion is whether the feature or control system was built wholly in upland or in a non- jurisdictional water. As discussed above and as further clarified below, the agencies recognize that upland features may be connected to jurisdictional waters and that such a connection does not preclude application of the exclusion. Another key element is that the feature must convey, treat, infiltrate, or store stormwater. Stormwater control features have evolved considerably over time, and their nomenclature is not consistent, so in order to avoid unintentionally limiting the exclusion, the agencies have not included a list of excluded features in the final rule. The rule excludes the diverse range of stormwater control features that are currently in place and may be developed in the future. However, the agencies note that excluded stormwater control features when they have channelized surface water may provide a connection between the upstream reach of a relatively permanent water and a downstream jurisdictional water such that the upstream reach is jurisdictional. Even in this circumstance, the stormwater control feature would remain non-jurisdictional under this final rule. See Section III.D of this notice for further discussion. The agencies also note that while excluded from the definition of ‘‘waters of the United States,’’ stormwater control features may function as a conveyance of a discharge of pollutants from a point source to a water of the United States. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22324 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations Traditionally, stormwater controls were designed to direct runoff away from people and property as quickly as possible. Cities built systems to collect, convey, or store stormwater, using structures such as curbs, gutters, and sewers. Retention and detention stormwater ponds were built to store excess stormwater until it could be more safely released. More recently, use of stormwater controls to remove pollutants before the stormwater is discharged has become more prevalent. Even more recently, cities have turned to green infrastructure, using existing natural features or creating new features that mimic natural hydrological processes that work to infiltrate, evaporate, or transpire precipitation, to manage stormwater at its source and keep it out of the conveyance system. These engineered components of stormwater management systems can address both flood control and water quality concerns, as well as provide other benefits to communities. This final rule is designed to avoid disincentives to this environmentally beneficial trend in stormwater management practices. Many commenters supported the proposed rule’s exclusion for stormwater control features constructed or excavated in upland, asserting that environmentally beneficial solutions to manage stormwater could be discouraged if such features were designated as ‘‘waters of the United States.’’ Several commenters noted concerns that an exclusion dependent on an upland location could potentially deter stormwater system operators from installing beneficial green infrastructure and suggested that jurisdictional waters incorporated into the stormwater system should be excluded. Many commenters suggested that the final rule should define ‘‘stormwater control features’’ that would be excluded. The agencies’ longstanding practice is to view stormwater control features as non-jurisdictional when built outside of waters of the United States. The agencies do not agree with commenters who stated that jurisdictional waters that are incorporated into a drainage or stormwater conveyance system should be excluded by virtue of the fact that they are part of the larger stormwater control system. A water does not lose its jurisdictional status if it is modified for use as a stormwater control measure. The agencies recognize that highly engineered municipal separate storm sewer systems (MS4s) that may have replaced natural drainage features may therefore have jurisdictional waters within their systems, but this does not represent a change from longstanding practice. For example, the Los Angeles River is a traditional navigable water highly engineered for stormwater control, and it still meets the requirements of a paragraph (a)(1) water. Regarding comments related to defining the term ‘‘stormwater control features,’’ the agencies do not name specific stormwater control features that would fall under the stormwater control feature exclusion, as they do not want the final rule to be perceived as limiting the exclusion, particularly given differences among regional naming conventions and the likelihood that technologies and nomenclature will evolve in the future. Groundwater Recharge, Water Reuse, and Wastewater Recycling Structures In this final rule under paragraph (b)(11), the agencies exclude from the definition of ‘‘waters of the United States’’ groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters. While such features are not explicitly listed in the categories of waters that the agencies generally consider to be non- jurisdictional in the 1986 and 1988 preamble language, 51 FR 41206 (November 13, 1986) and 53 FR 20764 (June 6, 1988), this exclusion clarifies the agencies’ longstanding practice that waters and water features used for water reuse and recycling are not jurisdictional when constructed in upland or in non-jurisdictional waters. The agencies recognize the importance of water reuse and recycling, particularly in the arid West where water supplies can be limited and droughts can exacerbate supply issues. This exclusion is intended to avoid discouraging or creating barriers to water reuse and conservation practices and projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and infiltration ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water, which then infiltrates into groundwater via permeable soils. Though these features are often created in upland, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion in paragraph (b)(11) of the final rule codifies the agencies’ longstanding practice and encourages water management practices that the agencies recognize are important and beneficial. Many commenters expressed support for the proposed rule’s exclusion for wastewater recycling structures. Some commenters stated that the exclusion would encourage water reuse and other innovative approaches to water management. A few commenters supported the exclusion because they said wastewater recycling structures should be regulated at the State level. Some commenters stated that considering a wastewater recycling structure a water of the United States could create unnecessary regulatory and economic burdens, while providing no additional water quality protection. Several commenters stated that the exclusion of groundwater recharge basins and similar structures was consistent with Justice Scalia’s plurality opinion in Rapanos, as groundwater recharge basins do not discharge to any navigable waters, are filled only during part of the year, and do not otherwise constitute a traditional navigable water within the meaning of the plurality’s jurisdictional test. A number of commenters suggested that the qualifying language in the proposed rule’s wastewater recycling structures exclusion, which would have limited the exclusion to wastewater recycling structures ‘‘constructed in upland,’’ could create barriers to water reuse and conservation. For the reasons described above, the agencies believe that the (b)(11) exclusion reflects an appropriate balance among CWA policies and encouraging water reuse and effective water management. As a result, this final rule includes the (b)(11) exclusion largely unchanged from the proposal. The agencies did modify the exclusion in response to comments to add the term ‘‘water reuse’’ to the exclusion as it is commonly used in water and wastewater management. The agencies also added ‘‘or non-jurisdictional waters’’ to the exclusion to ensure that it is not narrowly restricted to construction in upland only. As discussed above, the agencies will apply the qualifier ‘‘constructed or excavated in upland or in non-jurisdictional waters’’ consistently across four exclusions that use the term. Waste Treatment Systems Paragraph (b)(12) of the final rule excludes waste treatment systems. The waste treatment system exclusion has existed since 1979 (44 FR 32854), and the agencies are continuing the exclusion under this final rule. The agencies are also for the first time providing in the final rule a definition of ‘‘waste treatment system’’ under paragraph (c)(15), so as to clarify which waters and features are considered part of a waste treatment system and therefore excluded. Continuing the agencies’ longstanding practice, any VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22325 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 58 See 47 FR 52290, 52291, 52305 (Nov. 19, 1982) (deleting definition of cooling ponds at 40 CFR 423.11(m)). entity with a waste treatment system would need to comply with the CWA by obtaining a section 404 permit for new construction in a water of the United States, and a section 402 permit for discharges from the waste treatment system into waters of the United States. Consistent with the proposal, the agencies intend for this exclusion to apply only to waste treatment systems constructed in accordance with the requirements of the CWA and to all waste treatment systems constructed prior to the 1972 CWA amendments. One ministerial change in the final rule from the 2019 Rule is the deletion of a cross-reference to a regulatory definition of ‘‘cooling ponds’’ that no longer exists in the Code of Federal Regulations.58 Many commenters supported the waste treatment system exclusion and definition as proposed and agreed that the proposed exclusion would codify the agencies’ longstanding practice. Some commenters requested that the exclusion be expanded to include all ancillary systems, channels, appurtenances, conveyances, and diversion ditches associated with the waste treatment system. Other commenters stated that the proposed exclusion was unlawful and that it should be eliminated entirely. Some commenters suggested that there may be confusion concerning the agencies’ intent to apply the exclusion to waste treatment systems constructed prior to the 1972 CWA amendments and requested that this concept be explicitly included in the final regulatory text. The agencies have considered these public comments and have finalized the waste treatment exclusion as it was proposed. As noted above, the agencies agree with commenters that this final rule codifies the longstanding exclusion that was first included in regulation in 1979. The agencies disagree with suggestions to expand or eliminate the exclusion and have finalized the definition as proposed. The agencies also disagree with the suggestion that the exclusion is unlawful and that there is confusion over the agencies’ intent to apply this exclusion to all waste treatment systems constructed prior to the 1972 CWA amendments. The agencies clearly stated their intent to do so in the notice of proposed rulemaking and in this final rule, and do not believe it is necessary to repeat this intent in the regulatory text. The regulatory text applies to all waste treatment systems that meet the definition set forth therein, including systems constructed prior to the 1972 CWA amendments, and there is no basis for construing the exclusion not to apply to such systems. The agencies also considered other exclusions recommended by stakeholders prior to the proposed rule and suggested in comments on the proposed rule. The agencies did not include these additional proposed exclusions in the final rule. Some of the suggested exclusions were so broadly characterized that they would have introduced confusion and potentially excluded waters that the agencies have consistently determined should be covered as waters of the United States. Other suggested exclusions were so site- specific or activity-based that they did not warrant inclusion in the nationally- applicable definition. Still other suggested exclusions were covered by another exclusion in the rule, and thus would have been superfluous, in whole or in part. 3. How will the agencies implement the final rule? To determine whether a water meets the final rule’s exclusions in paragraphs (b)(1) through (b)(12), the agencies will first evaluate whether the water meets the definition of ‘‘waters of the United States’’ under paragraphs (a)(1) through (4). If the water does not satisfy any of the paragraph (a)(1) through (4) conditions, it is non-jurisdictional under paragraph (b)(1). If the water does satisfy one or more of the conditions to be a paragraph (a)(1) through (4) water, the agencies will evaluate if the water is identified in any of the categories of excluded waters and features under paragraphs (b)(2) through (12) of this final rule. If the water meets any of these exclusions, the water is excluded even if the water satisfies one or more of the conditions to be a paragraph (a)(1) through (4) water. As discussed above, the agencies’ final rule includes an exclusion for groundwater under paragraph (b)(2), including groundwater drained through subsurface drainage systems. The final rule clarifies that even when groundwater is channelized in subsurface systems, like tile drains used in agriculture, it remains subject to the exclusion. However, the exclusion does not apply to surface expressions of groundwater, such as where groundwater discharges to the channel bed and becomes baseflow in intermittent or perennial streams. The agencies’ exclusion for groundwater in the final rule is consistent with longstanding agency practice. Some commenters requested that the agencies provide guidance as to how to implement the exclusion for ephemeral features. For example, a commenter stated that a blanket exclusion of ephemeral streams without regard to flow quantity could increase the difficulty in delineating such features and could limit activities to certain time periods. Some commenters suggested the agencies consider certain ephemeral features to be jurisdictional on a situational or regional basis, while other commenters supported a case-by-case determination of ephemeral features that would fall under the exclusion, rather than excluding ephemeral features categorically. One commenter requested implementation tools, including visual aids or benchmarks to identify excluded features, observing that distinguishing between ephemeral and intermittent waters may be challenging. This final rule is intended to establish categorical bright lines that provide clarity and predictability for regulators and the regulated community. Consistent with that goal, the final rule eliminates the case-specific application of Justice Kennedy’s significant nexus test, and instead establishes clear categories of jurisdictional waters and non-jurisdictional waters and features that adhere to the basic principles articulated in the Riverside Bayview, SWANCC, and Rapanos decisions, including key principles expressed in Justice Scalia’s plurality opinion and Justice Kennedy’s concurring opinion in that case, as discussed at length in this preamble, while respecting the overall structure and function of the CWA. The agencies have existing field and remote tools and additional implementation tools and methods under development that will help distinguish flow classifications of streams and other waterbodies. The agencies can use many tools and remote and field-based methods described in Section III.D.3 to distinguish between paragraph (b)(3) ephemeral streams, swales, gullies, rills, and pools and paragraph (b)(4) areas with diffuse stormwater run-off and directional sheet flow over upland, while comparing both against waters subject to jurisdiction under paragraph (a). Under past and existing practice, the agencies have substantial experience using remote tools and field observations to distinguish between channelized and non-channelized features, and the agencies expect that many landowners can distinguish between these features using visual observations. Under this final rule, landscapes with non-channelized, diffuse stormwater and overland sheet flow are excluded regardless of the flow regime characteristics, because under VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22326 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 59 The agencies note that the USDA’s regulatory definition of ‘‘prior converted cropland’’ in the FSA and the definition being established in this final rule have different purposes and they are substantively different. Based on the FSA’s statutory requirements, the USDA definition of ‘‘prior converted cropland’’ requires that agricultural commodity crop production be made possible prior to 1985. See 7 CFR 12.2(a)(8); 16 U.S.C. 3801 (defining converted wetland) and 16 U.S.C. 3822(b)(1)(A) (establishing the pre-1985 exemption). If commodity crop production was made possible on a particular parcel or tract of land prior to 1985, that land is eligible for the prior converted cropland exclusion in this final rule. Once eligibility is determined, the agencies will evaluate the land to determine if the exclusion currently applies, or if the land has been abandoned, as described in this final rule. 60 See the Notice of Proposed Rulemaking at 84 FR 4193 for a summary of how the agencies historically implemented and enforced this exclusion. these circumstances, flow is occurring only in direct response to precipitation over areas that meet the definition of ‘‘upland.’’ As explained by the Rapanos plurality, regulating these features as waters of the United States extends beyond the rational meaning of the term. 547 U.S. at 734. With respect to implementing the final rule’s paragraph (b)(5) exclusion for certain ditches, the reach of a ditch that meets paragraph (a)(1) or (2) of the final rule is considered a water of the United States, with ‘‘reach’’ interpreted similarly to how it is used for tributaries in Section III.D of this notice (i.e., a section of a ditch along which similar hydrologic conditions exist, such as discharge, depth, area, and slope). The jurisdictional status of other reaches of the same ditch must be assessed based on the specific facts and under the terms of the final rule to determine the jurisdictional status of those reaches. For example, a ditch that is constructed in a tributary is not an excluded ditch under paragraph (b)(5) so long as it satisfies the flow conditions of the ‘‘tributary’’ definition or the conditions of the ‘‘adjacent wetlands’’ definition as further described in Section III.D and Section III.E. Further, the ditch exclusion does not affect the possible status of a ditch as a point source. Also, a ditch constructed in an adjacent wetland that satisfies the conditions of paragraph (a)(4) is not excluded. The agencies believe that the final rule’s ditch exclusion encompasses most irrigation and drainage ditches, including most roadside and other transportation ditches, as well as most agricultural ditches. In paragraph (b)(6) of this final rule, the agencies are reconfirming the longstanding prior converted cropland exclusion. This final rule also codifies the abandonment principle as applied to the prior converted cropland exclusion, as first articulated in the 1993 preamble (58 FR 45033), and provides additional clarification regarding what constitutes ‘‘agricultural purposes.’’ As a result of this final rule, the change in use analysis will no longer be used to evaluate whether the prior converted cropland exclusion applies. Under the final rule, when cropland has been abandoned (i.e., the cropland has not been used for or in support of agricultural purposes for a period of greater than five years), and wetlands have returned, any prior converted cropland designation for that site will no longer be valid for purposes of the CWA. The USDA is responsible for making determinations as to whether land is prior converted cropland for its FSA purposes, whereas the agencies are responsible for determining applicability of the exclusion for CWA purposes, consistent with the government’s longstanding interpretation of the agencies’ authority under the CWA. See 33 CFR 328.3(a)(8) (‘‘Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.’’); CWA Regulatory Programs, 58 FR 45,008, 45,036 (Aug. 25, 1993); Administrative Authority to Construe §404 of the Federal Water Pollution Control Act (‘‘Civiletti Memorandum’’), 43 Op. Att’y Gen. 197 (1979). The agencies will defer to USDA for purposes of establishing whether a parcel or tract of land has received a prior converted cropland determination and is therefore eligible for the prior converted cropland exclusion under this rule. A landowner without an existing prior converted cropland determination may seek a new determination from the USDA.59 The USDA is subject to specific statutes designed to protect landowner privacy and, as such, is prohibited from making certain parcel- specific information available without the landowner’s consent. To ensure that the agencies can rely on a USDA prior converted cropland determination, the landowner will need to either provide a copy of the determination or provide the agencies with a signed consent form to allow the agencies access to the relevant information for the limited purpose of verifying USDA’s prior converted cropland determination. The agencies recognize that privacy and confidentiality issues concerning certain producer information is addressed at section 1619 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)) and section 1244(b) of the Food Security Act of 1985, as amended (16 U.S.C. 3844(b)). If a parcel is found to be prior converted cropland, as defined in this rule, it is not a water of the United States. Once a threshold determination has been made that certain lands are prior converted cropland, the EPA and the Corps are responsible for implementing the prior converted cropland exclusion for CWA purposes and identifying (as further explained below) whether the lands have been abandoned and whether wetlands conditions have returned such that they are no longer eligible for the prior converted cropland exclusion in this rule and thus may be waters of the United States. In addition to working closely with the USDA, the agencies will consider documentation from NOAA and FEMA when evaluating whether a parcel of land may no longer be eligible for the CWA prior converted cropland exclusion. In all cases, the burden to prove that such parcel is a water of the United States remains on the agencies. The agencies’ implementation of the prior converted cropland exclusion for CWA regulatory purposes does not affect the USDA’s administration of the FSA or a landowner’s eligibility for benefits under FSA programs.60 Under the final rule, to determine the continuing applicability of the prior converted cropland exclusion, the Corps must first determine whether the land has been ‘‘abandoned.’’ As described previously, prior converted cropland will be considered abandoned if it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. In making an abandonment determination, the Corps will work with the landowner and USDA, as appropriate, to determine whether the land is currently or has been used for or in support of agricultural purposes at least once in the immediately preceding five years. As noted above, there are many uses that may fall within this category, including but not limited to, grazing; haying; idling land for conservation purposes (e.g., habitat; pollinator and wildlife management; and water storage, water supply, and flood management); irrigation tailwater storage; crawfish farming; cranberry bogs; nutrient retention; and idling land for soil recovery following natural disasters like hurricanes and drought. Some of those land uses may not be obvious to Corps field staff, so the agencies may rely on public or private documentation to demonstrate that the land is enrolled in a conservation program or is otherwise VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22327 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations being used for or in support of agricultural purposes. Such information may include aerial photographs, topographical maps, cultivation maps, crop expense or receipt records, field- or tract-specific grain elevator records, and other records generated and maintained in the normal course of doing business, including government agency records documenting participation in a conservation program, and other documentation reasonably establishing one or more ‘‘agricultural purposes.’’ The final rule requires that the land be used for or in support of agricultural purposes within the immediately preceding five years. In implementing this requirement, the agencies will consider documentation from USDA, NOAA, FEMA, and other Federal and State agencies to determine whether the land was used for or in support of agricultural purposes in the immediately preceding five years. For example, USDA administers multiple programs that track whether fields have been planted or harvested in the normal course, or enrolled in long-term conservation rotations, and the agency provides crop insurance for years where those activities were halted for reasons covered under their insurance policies; NOAA tracks long- and short-term weather patterns and can provide information and data concerning flood or drought conditions that may cause or contribute to idling land in support of agricultural purposes; and FEMA administers emergency response programs for natural disasters, including hurricanes, wildfires, and other events that could also require idling land for soil recovery and other agricultural purposes. The agencies will take into account this information, and additional documentation reasonably establishing ‘‘agricultural purposes’’ when evaluating whether cropland has been used for or in support of agricultural purposes in the immediately preceding five years. If the Corps determines that the land is abandoned, then it must evaluate the current condition of the land to determine whether wetland conditions have returned. If wetlands are currently present on the property, the agencies will determine whether the wetlands are ‘‘adjacent wetlands’’ and therefore ‘‘waters of the United States,’’ consistent with this final rule. As the term ‘‘prior converted cropland’’ suggests, and as stated in the preamble to the 1993 Rule, land properly designated as prior converted cropland has typically been so extensively modified from its prior condition that it no longer exhibits wetland hydrology or vegetation, and no longer performs the functions it did in its natural and original condition as a wetland. 58 FR 45032. It is often altered and degraded, with long-term physical and hydrological modifications that substantially reduce the likelihood of reestablishment of hydrophytic vegetation. Consistent with longstanding agency policy and wetland delineation procedures, if a former wetland has been lawfully manipulated to the extent that it no longer exhibits wetland characteristics under normal circumstances, it would not be jurisdictional under the CWA. The altered nature of prior converted cropland and its conditions constitute the ‘‘normal circumstances’’ of such areas. The agencies expect the majority of prior converted cropland in the nation to fall into this category and not to be subject to CWA regulation, even after it is abandoned. However, at least some abandoned prior converted cropland may, under normal circumstances, meet the definition of ‘‘wetlands’’ under paragraph (c)(16). In paragraph (b)(7), the agencies clarify their longstanding view that the artificial irrigation exclusion applies only to the specific land being artificially irrigated, including fields flooded for agricultural production, including but not limited to rice or cranberry growing, which would revert to upland should artificial irrigation cease. Historically, the agencies have taken the position that ponds for rice growing are generally not considered waters of the United States, as reflected in the 1986 and 1988 preambles. See 51 FR 41206, 41217 (November 13, 1986) and 53 FR 20764–65 (June 6, 1988). In the past, the agencies have considered those under the artificial lakes or ponds category of waters that are generally non-jurisdictional, but this final rule includes them in the artificial irrigation exclusion category as any wetland crop species, such as rice and cranberry operations, that is typically supplied with artificial flow irrigation or similar mechanisms. A number of commenters addressed the difficulty in proving that land would revert to upland when irrigation ceased and suggested clarification as to whether documentation was needed as proof. The agencies agree that proving that land would revert to upland may be challenging in some circumstances. The agencies have developed strategies and guidance to assist with determining if wetland conditions will persist when irrigation ceases. This includes, but is not limited to, utilizing aerial photography, soil maps, LiDAR, remote sensing, and field assessments to determine if wetland conditions are the result of irrigation or are naturally occurring. Commenters also raised concern about whether the exclusion is only available for rice and cranberry growing areas. The inclusion of rice and cranberries in the proposed rule were simply examples and not intended to be exhaustive. In this final rule, the agencies conclude that it is not necessary to list all crops potentially eligible for the exclusion, and therefore simply reference ‘‘agricultural production.’’ The relevant factor in determining the application of the exclusion is not what type of crop may be planted or cultivated, but whether the area is artificially irrigated and would revert to upland should irrigation cease. Under the final rule, the exclusion for waters meeting the conditions of paragraph (b)(8) applies to artificial lakes and ponds created through construction or excavation in upland or in non-jurisdictional features. Such artificial lakes and ponds would not be jurisdictional under the final rule even if they maintain a hydrologic surface connection to waters of the United States or are inundated by waters of the United States. Conveyances created in upland that are physically connected to and are a part of the excluded feature also are excluded. A commenter inquired as to whether the artificial waterbody created by impounding a jurisdictional tributary would be jurisdictional. The agencies note that under the final rule, impoundments are considered jurisdictional if they impound a paragraph (a)(1) through (4) water, which includes jurisdictional tributaries, and contribute surface water flow in a typical year to a paragraph (a)(1) water or are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year. Impounding a jurisdictional tributary does not create a non-jurisdictional lake or pond that would be excluded under paragraph (b)(8), but rather creates a jurisdictional impoundment so long as it meets the conditions of paragraph (a)(3) as defined in paragraph (c)(6). The agencies note that artificial lakes and ponds that are excluded from the definition of ‘‘waters of the United States’’ could, in some circumstances, be point sources of pollutants subject to sections 301 and 402 of the Act. Under paragraph (b)(9), water-filled depressions constructed or excavated in upland or in non-jurisdictional waters that are incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22328 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations sand, or gravel are excluded from the definition of ‘‘waters of the United States.’’ To determine whether a water or feature meets this exclusion, the agencies will evaluate whether the water feature is constructed or excavated in upland or in non- jurisdictional waters as part of these industrial activities. In addition, such water-filled depressions and pits could become waters of the United States once construction or mining activities have permanently ceased and the depressions or pits meet the conditions of a paragraph (a)(1) through (4) water. The final rule excludes in paragraph (b)(10) stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run- off. As stated previously, the rule excludes a diverse range of stormwater control features that are currently in place and that may be developed in the future. To determine if such a water or feature meets the exclusion, the agencies will evaluate whether the stormwater feature is constructed or excavated in upland or in non- jurisdictional waters. Paragraph (b)(11) of the final rule clarifies that groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters are excluded. To determine whether a such a structure meets this exclusion, the agencies will evaluate whether the water or feature is constructed or excavated in upland or in non- jurisdictional waters. This exclusion includes detention and retention basins as well as groundwater recharge basins and infiltration ponds excavated in upland or in non-jurisdictional waters for wastewater recycling. The exclusion also covers water distributary structures that are built in upland or in non- jurisdictional waters for water recycling. These features often connect or carry surface water flow to other water recycling structures, for example, a channel or ditch that carries water to an infiltration pond. Consistent with longstanding practice, the agencies do not consider these water distributary systems jurisdictional. As discussed previously, the agencies are not changing the longstanding approach to implementing the waste treatment system exclusion. As a result, the agencies will continue to apply the exclusion to systems that are treating water to meet the requirements of the CWA. Discharges from these systems to waters of the United States would continue to be subject to regulation by the CWA section 402 permitting program. Similarly, if a waste treatment system is abandoned or otherwise ceases to serve the treatment function for which it was designed, it does not continue to qualify for the exclusion. Some commenters suggested the agencies clarify the way in which the waste treatment system exclusion is currently implemented. Many comments inquired as to whether stormwater systems and wastewater reuse facilities are considered part of a complete waste treatment system for purposes of the waste treatment system exclusion. To enhance clarity, the agencies have provided in the final rule two related exclusions in paragraphs (b)(10) and (b)(11) and have added settling basins and cooling ponds to the definition of ‘‘waste treatment system’’ in paragraph (c)(15). The agencies note that cooling ponds that are created under CWA section 404 in jurisdictional waters and that have CWA section 402 permits are subject to the waste treatment system exclusion under the 2019 Rule and will also be excluded under the final rule. Cooling ponds created to serve as part of a cooling water system with a valid State or Federal permit constructed in waters of the United States prior to enactment of the 1972 amendments of the CWA and excluded from jurisdiction under the 2019 Rule also remain excluded under the final rule. Some commenters on the proposed rule’s waste treatment system exclusion expressed confusion regarding whether stormwater treatment features would be excluded under the exclusion for stormwater control features or under the waste treatment exclusion. Such determinations will depend on the specific attributes of the control and the water feature and thus need to be made on a case-by-case basis. It is possible that a stormwater feature could qualify for both the stormwater control features exclusion and the waste treatment systems exclusion. This same principle applies to other exclusions that may have similar cross-over features, like certain ditches used in stormwater management systems. It is important to reiterate that while the waters and features listed in the final rule’s exclusions are not waters of the United States, some of them may convey surface water flow to a downstream jurisdictional water, so that reaches of a water upstream and downstream of the excluded water or feature may meet the definition of ‘‘tributary’’ in paragraph (c)(12). For example, when some water from a tributary is moved into a downstream jurisdictional water through an excluded ditch, the ditch itself is excluded from jurisdiction under the final rule but the tributary upstream of the ditch is jurisdictional if the non- jurisdictional ditch conveys surface water flow in a typical year to the downstream jurisdictional reach. I. Placement of the Definition of ‘‘Waters of the United States’’ in the Code of Federal Regulations 1. What are the agencies finalizing? The definition of ‘‘waters of the United States’’ has historically been placed in eleven locations in the Code of Federal Regulations (CFR). For the sake of simplicity, in this final rule, the agencies are codifying the definition of ‘‘waters of the United States’’ in only two places in the CFR—once in Title 33 (which implements the Corps’ statutory authority) and once in Title 40 (which generally implements the EPA’s statutory authority). 2. Summary of Final Rule Rationale and Public Comment The agencies proposed to maintain the definition of ‘‘waters of the United States’’ at 33 CFR 328 and in ten locations in Title 40. The agencies solicited comment on an alternative approach under which the definition would be codified in just two locations within the CFR, rather than in the eleven locations in which it has previously appeared. Most commenters recommended that the definition of ‘‘waters of the United States’’ be codified twice, once in Title 33 of the CFR and once in Title 40 of the CFR. These commenters recommended limiting codification to two locations in order to clarify that there is a single definition of ‘‘waters of the United States’’ applicable to the entire CWA, to reduce confusion and conflicting interpretations under different programs, and to promote ease of use for the regulated community and for laypersons. Many of these commenters suggested including a cross-reference in the original ten locations of Title 40 of the CFR. Some commenters recommended continuing the agencies’ practice of codifying the definition of ‘‘waters of the United States’’ in eleven locations within the CFR. The agencies agree with commenters that stated that codifying the definition of ‘‘waters of the United States’’ in two locations within the CFR will reduce confusion and promote ease of use for States, Tribes, local government, the regulated community, and the general public. With this final rule, the agencies are codifying the definition of ‘‘waters of the United States’’ in Title 33 of the CFR, which implements the Corps’ statutory authority, at 33 CFR 328.3, and in Title 40, which generally implements VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22329 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 61 See, e.g., Letter from Nancy Stoner, Acting Assistant Adm’r, EPA Office of Water, to Lamar Smith, Chairman, Comm. on Science, Space, and Tech., U.S. House of Representatives (July 28, 2014) (emphasis added), available at https:// web.archive.org/web/20180919173837/https:// science.house.gov/sites/republicans.science. house.gov/files/documents/epa_releases_maps_ letter.pdf. (‘‘[N]o national or statewide maps have been prepared by any agency, including EPA, showing the scope of waters subject to the Clean Water Act. . . . To develop maps of jurisdictional waters requires site-specific knowledge of the physical features of water bodies, and these data are not available[.]’’) (emphasis added); see also Letter from Nancy Stoner, Deputy Assistant Adm’r, EPA Office of Water, to Lamar Smith, Chairman, Comm. on Science, Space, and Tech., U.S. House of Representatives (August 6, 2014), available at https://web.archive.org/web/20180919173837/ https://science.house.gov/sites/republicans.science. house.gov/files/documents/epa_releases_maps_ letter.pdf); U.S. EPA, Mapping the Truth, The EPA Blog (Aug. 28, 2014), available at https:// blog.epa.gov/2014/08/28/mapping-the-truth/ (‘‘While these [U.S. Geological Survey and Fish & Wildlife Service] maps are useful tools for water resource managers, they cannot be used to Continued the EPA’s statutory authority, at 40 CFR 120.2. In the sections of the CFR where the EPA’s regulatory definition previously existed, 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to 40 CFR part 300, this final rule cross- references the newly created section of the regulations containing the definition of ‘‘waters of the United States.’’ The agencies have placed the EPA’s definition of ‘‘waters of the United States’’ in a previously unassigned part of 40 CFR. The change in placement has no implications on CWA program implementation; it is made for the sole purpose of enhancing the clarity of the federal regulations. Placing the definition of ‘‘waters of the United States’’ in a single section in the part of the regulations that implements the EPA’s authority and once again in the part of the regulations that implements the Corps’ authority makes clearer to members of the public that there is a single definition of ‘‘waters of the United States’’ applicable to the CWA and its implementing regulations. IV. State, Tribal, and Federal Agency Datasets of Waters of the United States During the extensive pre-proposal outreach to the general public and focused engagement with States and Tribes, the agencies heard from a number of States about their familiarity with waters within their borders and their expertise in aquatic resource mapping. As co-implementers of CWA programs, they also emphasized the potential benefit of greater State and tribal involvement in jurisdictional determinations. For these reasons, several States suggested that the agencies consider their knowledge and increase the role of States and Tribes in identifying those waters that are waters of the United States. Stakeholders also indicated that maps could increase certainty and transparency regarding the data and methods used to determine which waters are jurisdictional and which waters are not. In the Notice of Proposed Rulemaking for this rule, the agencies solicited comment as to how to create a regulatory framework that would authorize interested States, Tribes, and other Federal agencies to develop for the agencies’ approval geospatial datasets representing waters of the United States, as well as waters excluded from the definition, ‘‘waters of the State’’ or ‘‘waters of the Tribe’’ within their respective borders. 84 FR 4154, 4198– 4200 (February 14, 2019). This concept was not part of the proposed regulatory text; the agencies utilized the notice to solicit input and suggestions from the regulated public, States, Tribes, and other stakeholders. Some commenters raised concerns regarding the limitations of data currently available for creating geospatial datasets of jurisdictional waters, particularly commenting on the limitations of national datasets such as the National Hydrography Dataset (NHD) and the National Wetlands Inventory (NWI). Some commenters expressed concerns about the resolution, completeness, accuracy, and usefulness of publicly-available data, with some stating that geospatial datasets cannot accurately assess the details needed to remotely determine or delineate jurisdictional waters. Other commenters noted that, despite the limitations in the available data, the agencies should attempt to quantify changes in the jurisdictional status of specific waterbody categories as a result of the final rule. The agencies agree that there are significant limitations to the extent to which currently available data can be used to identify the scope of all or even a subset of jurisdictional waters. There are currently no comprehensive datasets through which the agencies can depict the universe of federally-regulated waters under the CWA. For example, the agencies attempted to use the NHD at high resolution and NWI to assess the potential change in CWA jurisdiction as a result of the proposed rule to revise the definition of ‘‘waters of the United States,’’ but ultimately concluded that the limitations of these datasets precluded their use for quantifying the extent of waters whose jurisdictional status could change under the proposed rule, as discussed in Section V and in the Resource and Programmatic Assessment for the final rule. Due to these limitations, which were confirmed during the public comment period for the proposed rule and an evaluation by the agencies, the agencies also did not use the NHD or NWI to assess potential changes in jurisdiction as a result of the final rule. While the NHD and NWI are the most comprehensive hydrogeographic datasets mapping waters and wetlands in the United States and are useful resources for a variety of Federal programs, including CWA programs, they currently have technical limitations that present significant challenges for use as standalone tools to determine the full scope of CWA jurisdiction and for creating geospatial datasets of jurisdictional waters, regardless of the regulatory definition of ‘‘waters of the United States.’’ Importantly, the NHD and NWI were not created for regulatory purposes, so their limitations as comparative tools for CWA jurisdiction are not surprising. Due in part to the resolution of the data, limitations of the NHD for purposes of accurately mapping the scope of jurisdictional waters under the CWA include errors of omission (e.g., failure to map streams that exist on the ground); errors of commission (e.g., mapping streams that do not exist on the ground); horizontal positional inaccuracies; misclassification of stream flow condition, particularly in headwaters; and inconsistent mapping in different parts of the country. The NWI presents similar challenges for identifying federally-regulated waters, including the foundational obstacle of having a ‘‘wetlands’’ definition that differs from the federal regulatory ‘‘wetlands’’ definition. The NWI also contains errors of omission (e.g., failure to map wetlands that exist on the ground), errors of commission (e.g., mapping wetlands that do not exist on the ground), and potentially inaccurate wetland boundary identification. The limitations identified herein are examples and do not represent an exhaustive list of challenges faced by the agencies in potentially using them to identify the scope of CWA jurisdiction. For a more detailed discussion of the NHD and NWI datasets and their limitations for use as standalone tools to determine the full scope of waters that are and are not waters of the United States, see Chapter II of the Resource and Programmatic Assessment supporting this final rule. It has been the consistent position of the agencies that the NHD and the NWI do not represent the scope of waters subject to CWA jurisdiction.61 Indeed, VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22330 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations determine Clean Water Act jurisdiction—now or ever.’’); Letter from Kenneth J. Kopocis, Deputy Assistant Adm’r, EPA Office of Water, to Lamar Smith, Chairman, Comm. on Science, Space, and Tech., U.S. House of Representatives (Jan. 8, 2015) (‘‘These [USGS] maps were not prepared for the purpose of, nor do they represent, a depiction of the scope of waters protected under the Clean Water Act.’’); Impact of the Proposed ‘‘Waters of the United States’’’ Rule on State and Local Governments Before the H. Comm. on Transp. & Infrastructure and the S. Comm. on Env’t & Pub. Works, 114th Cong. (2015)(testimony of Gina McCarthy, Adm’r, EPA)(stating that the NHD and NWI maps were ‘‘not used to determine jurisdiction and not intended to be used for jurisdiction,’’ ‘‘are not relevant to the jurisdiction of the ‘waters of the U.S.’,’’ ‘‘are not consistent with how we look at the jurisdiction of the Clean Water Act,’’ and have ‘‘nothing to do, as far as I know, with any decision concerning jurisdiction of the Clean Water Act’’). 62 See Response to Comments for the Clean Water Rule, Clean Water Rule Comment Compendium Topic 8: Tributaries, Docket ID. No. EPA–HQ–OW– 2011–0880–20872, p. 442, https:// www.regulations.gov/document?D=EPA-HQ-OW- 2011-0880-20872. 63 Id. at p. 593. 64 See Letter from David Ross, Asst. Adm’r, EPA Office of Water, and Ryan Fisher, Principal Deputy Asst. Sec. of the Army (Civil Works), U.S. Army, to Dr. Tim Petty, Asst. Sec. for Water and Science, U.S. DOI, and Rob Wallace, Asst. Sec. for Fish, Wildlife, and Parks, U.S. DOI (September 17, 2019); see also Letter from Dr. Jim Reilly, Director, U.S. Geological Survey, to David Ross, Asst. Adm’r, EPA Office of Water, and Ryan Fisher, Principal Deputy Asst. Sec. of the Army (Civil Works), U.S. Army (October 1, 2019); see also Letter from Gary Frazer, Asst. Dir. for Ecological Services, U.S. Fish and Wildlife Service to David Ross, Asst. Adm’r, EPA Office of Water, and Ryan Fisher, Principal Deputy Asst. Sec. of the Army (Civil Works), U.S. Army (December 4, 2019). as part of the 2015 rulemaking, the agencies stated that they ‘‘do not have maps depicting waters of the United States under either present regulatory standards or those in the final [2015] rule.’’62 This remains true today; the agencies do not have maps of waters of the United States under the 2015 Rule, under the 2019 Rule, or under this final rule. For this reason, and to provide the public and the agencies with more information on which waters are or are not waters of the United States, the agencies sought public comment on a possible framework for developing geospatial datasets. The agencies acknowledge that they have previously taken the position that ‘‘maps of all the jurisdictional or non- jurisdictional waters are not feasible,’’63 and that maps ‘‘cannot be used to determine Clean Water Act jurisdiction—now or ever,’’ see U.S. EPA, Mapping the Truth, The EPA Blog (August 28, 2014). Rather than declaring the task too difficult, the agencies have decided to initiate development of state- of-the-art geospatial data tools through Federal, State, and tribal partnerships to provide an enhanced, publicly- accessible platform for critical CWA information, such as the location of federally jurisdictional waters, the applicability of State and tribal water quality standards, permitted facility locations, impaired waters, and other significant features. Such mapped features would make it easier for agency field staff, the general public, property owners, permit-holders and others to understand the relationship between familiar geographical features and the overlay of CWA jurisdictional waters. For Federal, State, and tribal agencies, such geospatial datasets could improve the administration of CWA programs and attainment of water quality goals. Geospatial datasets and resulting future maps that indicate waters likely subject to federal jurisdiction could allow members of the regulated community to more easily and quickly ascertain whether they may want to contact a government agency regarding the potential need for a CWA permit. These datasets, when fully developed, would promote greater regulatory certainty, relieve some of the regulatory burden associated with determining the need for a permit, and play an important part in helping to attain the goals of the CWA. In the future, the agencies and States could use geospatial datasets to identify waters with applicable water quality standards, total maximum daily loads, water quality monitoring data, and other beneficial information in one layered geospatial map. Since the proposed rule was published, the agencies have been engaging with other Federal agencies to discuss existing geospatial datasets and discuss opportunities to build upon them to map the nation’s aquatic resources, including both waters of the United States and non-jurisdictional waters. To align the agencies’ waters of the United States mapping interests with the U.S. Department of Interior’s (DOI) established and ever-improving aquatic resource mapping efforts, including the NHD, NWI, and other datasets, the EPA and the Corps are engaging with the U.S. Geological Survey (USGS) and the U.S. Fish and Wildlife Service (FWS) and have established a technical working group to develop strategies that can address their CWA mapping needs.64 The agencies believe the most efficient way to address their regulatory needs is to better align their efforts with DOI’s existing processes and national mapping capabilities. The EPA, USGS, and FWS have a long history of working together to map the nation’s aquatic resources. As the agencies pursue this mapping effort, they will continue to collaborate with DOI to enhance the NHD, NWI, and other products to better map the nation’s water resources and the waters of the United States while enhancing their utility to other CWA programs that the EPA and the Corps implement. In addition, the EPA’s Office of Research and Development (ORD) has established an ‘‘Improved Aquatic Resource Mapping’’ research area, which will be implemented in coordination with the Corps and EPA’s Office of Water. This research area could build upon longstanding EPA aquatic resource research and leverage existing research partnerships with other Federal agencies, States, and Tribes to improve mapping of aquatic resources. This research effort is intended to support the agencies’ need for improved data to inform CWA jurisdictional determinations, to support other regulatory and non-regulatory needs, and to contribute to ongoing and new EPA research. In the long-term, the agencies anticipate that this effort will yield improved methods of verifying aquatic resources to support CWA jurisdictional determinations and other programmatic needs. In the short-term, ORD intends to produce three primary products to begin to advance this goal: A review of the existing aquatic resource mapping methodologies, development of novel geospatial datasets in select watersheds, and development of calibration and validation datasets. All three products can incorporate outreach efforts to communicate and transfer results to stakeholders. The agencies also believe that any future efforts they pursue to work with States, Tribes, and Federal agencies to create geospatial datasets of jurisdictional waters will improve the data and information that is available to the public about the jurisdictional scope of the CWA, recognizing that data limitations may always exist. Many commenters supported the development of geospatial datasets or a mapping system of waters of the United States to provide a clear understanding of the presence or absence of jurisdictional waters. Many such commenters provided caveats and anticipated challenges. Other commenters suggested that creating such datasets posed too many challenges to be worthwhile. Many of these commenters considered the development of geospatial datasets of jurisdictional waters to be infeasible or inappropriate based on the need for field verification and maintenance to keep the datasets up-to-date, and the concern that potentially incomplete lists could be inaccurately perceived as a definitive list of all waters of the United States. These commenters stated that any datasets established should be used VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22331 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations only as a planning tool to inform jurisdictional determinations or to provide guidance on the location of potential waters of the United States. The agencies solicited comment on potential approaches to establishing a framework to allow States, Tribes, or Federal agencies to create geospatial datasets of jurisdictional waters. Some commenters supported deferring this effort to a future rulemaking. Several commenters recommended using existing technology to prioritize mapping traditional navigable waters prior to attempting to map jurisdictional tributaries or wetlands. A few commenters suggested engaging in several pilot projects or a phased approach before rolling out a dataset nationwide. Some commenters suggested that data in the geospatial datasets should either expire or be updated every five years, to reflect the timeframe for approved jurisdictional determinations or to ensure that the datasets effectively represent current conditions. The agencies solicited comment on appropriate features and attributes of the website that would publish this information, as well as any privacy considerations the agencies should understand. A few commenters opposed making public the details of jurisdictional determinations or expressed privacy concerns regarding the creation of geospatial datasets of jurisdictional waters. Some commenters stated that jurisdictional determinations or geospatial datasets of jurisdictional waters should be made available to the public. As the agencies work to pursue improved geospatial mapping of waters in the future, they intend to also work to enhance information that is already available to the public on jurisdictional determinations. The Corps maintains a website at https://permits.ops.usace. army.mil/orm-public that presents information on the Corps’ approved jurisdictional determinations and CWA section 404 permit decisions. Similarly, the EPA maintains a website at https:// watersgeo.epa.gov/cwa/CWA-JDs/ that presents information on approved jurisdictional determinations made by the Corps and the EPA under the CWA since August 28, 2015. These websites will incorporate approved jurisdictional determinations made under the revised definition of ‘‘waters of the United States’’ that the agencies are finalizing in this notice. In the Notice of Proposed Rulemaking, the agencies expressed interest in learning about experiences States, Tribes, and other Federal agencies have had with mapping aquatic resources and using this information for program implementation. A few State and tribal commenters expressed interest in working as partners with the agencies on mapping jurisdictional waters. Some State and local governments offered to share existing geospatial data with the agencies. Other State commenters were less supportive of an effort to map jurisdictional waters, with some raising concerns about the regulatory implications of mapping based on experiences in their States. Several State commenters raised concerns about costs of a mapping effort, with some commenters pointing to their own costly past mapping efforts. One commenter cited a State study that found that the State’s best attempt at mapping wetlands was only 56 percent successful at classifying wetlands compared to field delineations. The agencies will consider the comments and concerns raised and coordinate closely with States, Tribes, and other Federal agencies in future efforts to develop geospatial datasets. The agencies do not anticipate developing a regulatory framework for geospatial datasets that would impose requirements on States and Tribes to develop geospatial datasets of jurisdictional waters; the option would simply be available for interested States and Tribes. The agencies believe that pursuing the development of geospatial datasets of waters of the United States could provide for greater regulatory certainty and provide important information to States, Tribes, the regulated community, and the public. The agencies are in the early stages of this effort, and they will be informed by public comments and suggestions received in response to this rulemaking as they move forward. V. Overview of the Effects of the Rule and Supporting Analyses This section provides an overview of the potential effects of the final rule on federal and state regulatory programs and potential economic impacts of the final rule. Additional detail on these analyses are contained in and described more fully in the Resource and Programmatic Assessment for the Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ and in the Economic Analysis for the Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States.’’ Copies of these documents are available in the docket for this action. In defining the term ‘‘waters of the United States’’ under the CWA, Congress gave the agencies discretion to articulate reasonable limits on the meaning of that term, confined of course by the statutory text and Supreme Court guidance recognizing the outer limits of the agencies’ authorities. See, e.g., Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring) (‘‘Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.’’) (emphasis in original). With this action, the agencies are finalizing a new definition of ‘‘waters of the United States.’’ As discussed in Section II.E, the agencies conclude that this final rule clearly establishes the scope of jurisdictional waters under the CWA consistent with the legislative history and text of the statute and Supreme Court case law and provides greater regulatory predictability than the 2019 Rule regulatory text as interpreted by the Supreme Court and implemented through agency guidance. This final rule replaces the 2019 Rule. With respect to the CWA section 404 permitting program for the discharge of dredged and fill material, the agencies recognize that this final rule could affect approved jurisdictional determinations (AJDs) issued before the 2015 Rule or in States where the 2015 Rule was not in effect due to litigation, under the 2015 Rule, or under the 2019 Rule. An AJD is a document issued by the Corps stating the presence or absence of waters of the United States on a parcel. See 33 CFR 331.2. As a matter of policy, AJDs are valid for a period of five years from the date of issuance unless new information warrants revision before the expiration date or a District Engineer identifies specific geographic areas with rapidly changing environmental conditions that merit re-verification on a more frequent basis. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, §1(a), p. 1 (June 2005) (RGL 05–02). The possessor of a valid AJD may request that the Corps reassess a parcel and grant a new AJD before the five-year expiration date. An AJD constitutes a final agency action pursuant to the agencies’ definition of ‘‘waters of the United States’’ at the time of its issuance. See Hawkes, 136 S. Ct. at 1814. This final rule does not invalidate an AJD that was issued before the 2015 Rule or in States where the 2015 Rule was not in effect due to litigation, under the 2015 Rule, or under the 2019 Rule. As such, these AJDs will remain valid until the expiration date unless one of the criteria for revision is met under RGL 05–02, or the recipient VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22332 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 65 The memorandum is available at https:// www.army.mil/e2/c/downloads/525981.pdf. 66 See U.S. EPA and Department of the Army, Response to Comments of the EPA-Army Clean Water Rule at Topic 8: Tributaries p. 442 (May 20, 2015) (‘‘2015 Rule RTC’’) (Docket ID: EPA–HQ– OW–2011–0880–20872), available at https:// www.regulations.gov/document?D=EPA-HQ-OW- 2011-0880-20872.(‘‘The agencies do not have maps depicting waters of the United States under either present regulatory standards or those in the final rule.’’); see also id. at 593 (‘[M]aps of all the jurisdictional or non-jurisdictional waters are not feasible[.]’’). of such an AJD requests that a new AJD be issued pursuant to this final rule. Preliminary jurisdictional determinations (PJDs) issued by the Corps, however, are merely advisory in nature, make no legally binding determination of jurisdiction, and have no expiration date. See 33 CFR 331.2; see also U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 16–01 (October 2005). PJDs do not definitively state whether waters of the United States are present on a parcel. See Hawkes, 136 S. Ct. at 1812. However, as with AJDs, a recipient of a PJD may request a new PJD or an AJD be issued under this final rule. This final rule should not significantly affect the scope of waters over which the Corps retains permitting authority in States that have assumed the CWA section 404 dredged or fill material permit program pursuant to section 404(g), or the waters over which the Corps would retain permitting authority should States and Tribes assume the program in the future. When States or Tribes assume administration of the section 404 program, the Corps retains administration of permits in certain waters. 33 U.S.C. 1344(g). The scope of CWA jurisdiction as defined by ‘‘waters of the United States’’ is distinct from the scope of waters over which the Corps retains authority following State or tribal assumption. The Corps-retained waters are identified during approval of a State or tribal section 404 program, and any modifications are approved through a formal EPA process. 40 CFR 233.36. The way in which the Corps identifies waters to be retained was most recently addressed on July 30, 2018, in a memorandum from R.D. James, Assistant Secretary of the Army (Civil Works).65 The EPA also intends to clarify the issue in a separate ongoing rulemaking process designed to facilitate State and tribal assumption of the section 404 program. The scope of waters assumed by States or Tribes that are granted permitting authority under section 404(g) is dependent on the definition of ‘‘waters of the United States,’’ and will change with this final rule. For the States that already have section 404 programs (Michigan and New Jersey), those States have corresponding State wetland permitting programs that may apply in State waters that will no longer be jurisdictional under the final rule. For the proposed rule, the agencies conducted a series of analyses to better understand the potential effects across CWA programs associated with a revised definition of ‘‘waters of the United States.’’ The agencies solicited comment on all aspects of the analyses performed and published in support of the proposed rule, including the assumptions made, information used, and the three case studies presented in the economic analysis. The agencies further requested that commenters provide any data that could assist the agencies in evaluating and characterizing potential effects of the proposed rule. The agencies have incorporated additional information on tribal programs, updated the aquatic resource analysis, and have made other changes, particularly in light of the final rule repealing the 2015 Rule and recodifying the pre-existing regulations (the 2019 Rule). The 2019 Rule was finalized between the proposed and final rulemaking phases of this rule and changed the baseline for the analyses and discussion of potential effects on aquatic resources, CWA programs, and costs. The agencies note that the final rule is not based on the information in the agencies’ economic analysis or resource and programmatic assessment. See, e.g., NAHB, 682 F.3d at 1039–40. This information was not used to establish the new regulatory text for the definition of ‘‘waters of the United States.’’ As discussed in Section IV and in the proposed rule preamble (84 FR 4200), the agencies are not aware of any map or dataset that accurately or with any precision portrays the scope of CWA jurisdiction at any point in the history of this complex regulatory program. Establishing a mapped baseline from which to assess regulatory changes is likewise impracticable at this time, just as it was when the agencies finalized the 2015 Rule.66 The challenge of identifying an accurate baseline is further complicated by a long history of an evolving definition of ‘‘waters of the United States.’’ As summarized in Section II, what was understood about the potential scope of CWA jurisdiction changed in the 1970s following National Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975), in the mid-1980s with Riverside Bayview and regulatory updates, in 2001 with the landmark SWANCC decision, in 2006 with the fractured Rapanos decision, in 2007 and 2008 with the agencies’ attempts to discern the meaning of the Rapanos decision through guidance and throughout the ensuing decade of litigation that tested those interpretations, in 2015 with a major rulemaking to redefine the operative phrase ‘‘waters of the United States’’ and throughout the complex litigation following that rulemaking, and in 2019 with a rule to repeal the 2015 Rule and recodify pre-existing regulations. As the Chief Justice of the Supreme Court succinctly observed in 2016, ‘‘[i]t is often difficult to determine whether a particular piece of property contains waters of the United States . . . .’’ Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. at 1812. Given the complicated history of ‘‘waters of the United States,’’ the agencies are not aware of any means to quantify changes in CWA jurisdiction with any precision that may or may not occur as a result of this final rule. The agencies acknowledge that they faced criticism from many commenters regarding the accuracy and assumptions they made when attempting to estimate changes in jurisdiction for the 2015 Rule’s economic analysis (EA), which was then utilized for a portion of the proposed rule EA and the 2019 Rule EA. For the 2015 Rule EA, the agencies reviewed Corps approved jurisdictional determinations made under pre-2015 Rule practice to evaluate how the jurisdictional status of those waters might change under the 2015 Rule. Other commenters on the proposed rule critiqued the agencies for not repeating the analysis used to support the 2015 Rule’s EA. The agencies have determined that the analysis of approved jurisdictional determinations conducted for the 2015 Rule EA may have incorrectly assumed that the 2015 Rule would affect entities regulated under the CWA in direct proportion to the percent change in positive jurisdictional determinations. This proportional assumption could have yielded overestimates of costs and benefits of the rule. Thus, the agencies have determined that conducting such an analysis for this final rule would not be appropriate. In addition, some commenters questioned the adequacy of the agencies’ Resource and Programmatic Assessment (RPA) analyses for the proposed rule, primarily because the agencies did not use the NHD or NWI, even heavily caveated. Other commenters raised concerns about the lack of the quantification of potential changes in jurisdiction and asserted that the agencies overestimated the ability of VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22333 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations States to regulate additional non- jurisdictional waters. Other commenters noted that even though the NHD and the NWI have limitations, the errors associated with the datasets would underestimate, not overestimate, the scale of resources likely to be identified as non-jurisdictional under the proposed rule. As discussed in the RPA for the final rule, the agencies attempted to use publicly available data from national datasets (i.e., the NHD and the NWI) to estimate the potential extent of aquatic resources across the country before publishing the proposed rule. The agencies ultimately concluded that the limitations of the datasets (e.g., errors of omission, errors of commission, positional inaccuracies, misclassification of flow regime, different definitions compared to both existing and proposed regulations) precluded using the NHD and the NWI to quantify the potential extent of waters whose CWA jurisdictional status could change under the proposed revised definition. Because these limitations still exist, the agencies decided to qualitatively describe the potential effects of this final rule relative to the baseline of the 2019 Rule as implemented. Some commenters stated that the RPA and the EA for the proposed rule thoroughly addressed the potential impacts of the proposed revised definition, correctly acknowledged the technical limitations of the analysis and datasets, accurately noted that the avoided costs of the proposal far outweighed any foregone benefits it may have, and agreed with the agencies’ decision not to rely on flawed data to perform comparative analyses of the proposed regulatory changes. Other commenters expressed support for the RPA’s comprehensive analysis of the potential implications of the revised definition for all relevant CWA programs and the interplay between relevant State and federal regulations. Recognizing that there will be limitations with any approach, in the RPA and EA for the final rule the agencies describe how the revised definition compares to the baseline of the 2019 Rule as implemented (i.e., the pre-2015 regulations that were recodified in 2019, and as interpreted by the Supreme Court and implemented consistent with those decisions and informed by agency guidance). See 84 FR 56626 (Oct. 22, 2019). The documents outline the agencies’ assessment of the potential effects of the revised definition on types of aquatic resources (e.g., wetlands, tributaries, impoundments) across the country and on CWA programs, and the RPA provides further information on programs addressing aquatic resource quality under other Federal statutes. To further inform the final rule and in an effort to respond to comments received on the proposed rule analyses, the agencies conducted additional research on current State and tribal laws and programs to better understand how States and Tribes already regulate waters within their borders. Descriptions of State programs are in Appendix A of the RPA, and descriptions of tribal programs are in Appendix B of the RPA. To assess the potential effects of the rule on aquatic resources, the agencies examined data records in the Corps’ Operation and Maintenance Business Information Link, Regulatory Module (ORM2) database that documents Corps decisions regarding the jurisdictional status of various aquatic resource types (i.e., jurisdictional determinations). The aquatic resource types used in ORM2 generally track the Rapanos Guidance (e.g., ‘‘relatively permanent waters,’’ ‘‘non-relatively permanent waters’’) but do not directly correlate with the terms used in the final rule, with limited exceptions. For the final rule, the agencies updated their analysis from the proposal RPA and EA to reflect data from ORM2 for fiscal years 2013–2018. Because of various limitations in accurately estimating a change in CWA jurisdiction, as described in Section IV of this notice, and uncertainties regarding the way States and Tribes might respond following a change in the definition of ‘‘waters of the United States,’’ many of the potential effects of the final rule are discussed qualitatively, and some are discussed quantitatively where possible. As discussed in the RPA and the EA for the final rule, the agencies also evaluated potential effects of the final rule across CWA regulatory programs. The RPA and EA describe certain potential short-term effects for CWA regulatory programs; however, the potential long-term effects will depend on whether or how States and Tribes choose to modify their existing regulatory programs. For example, States may elect to make changes to their statutes or regulations to regulate waters that are no longer jurisdictional under the final rule. As discussed more fully in the EA, complete State ‘‘gap- filling’’ could result in a zero-net impact in the long-run. Regarding the permitting programs under sections 402 and 404 of the CWA, the final rule will reduce the scope of waters subject to CWA permitting compared with the baseline of the 2019 Rule as implemented. For instance, the 2019 Rule, as implemented, would regulate certain ephemeral streams found to have a significant nexus with traditional navigable waters according to the 2008 Rapanos Guidance, whereas the revised definition in this final rule categorically excludes ephemeral features. Because fewer waters and wetlands are federally regulated under this rule relative to the 2019 Rule as implemented, the agencies anticipate that the regulated public would need to prepare fewer CWA permit applications. Additionally, some facilities currently discharging under a CWA section 402 permit may no longer be required to obtain permit coverage under federal law where there is a jurisdictional change to the receiving water and the receiving water does not convey pollutants from a point source to a water of the United States. The agencies note that they retain section 402 permitting authority over discharges that reach jurisdictional waters through conveyances, such as non-jurisdictional waters. In some section 402 permits, water quality-based effluent limitations may be modified, subject to applicable anti-backsliding permit requirements, where a facility discharges to a water that is non-jurisdictional under the final rule, but the pollutants discharged still reach a jurisdictional water. Any permittee with questions about the effects of this rule should consult their permitting authority, as State law may be broader than federal authority under the CWA. A reduction in jurisdictional waters under the final rule may reduce the number of federal permits that require a section 401 certification and may reduce the applicability of the section 311 program and associated Oil Spill Liability Trust Fund, as discussed in more detail in the EA and RPA. A change in the scope of CWA jurisdiction could affect existing and future State or tribal CWA section 303(d) lists and Total Maximum Daily Load (TMDL) restoration plans under section 303(d). For example, some States or Tribes may not assess non- jurisdictional waters, and thus may identify fewer waters as impaired and may develop fewer TMDLs. States may continue to apply their own State law- based programs to identify and restore impaired waters, although this activity would not be required under the CWA for waters that are not jurisdictional under the final rule. The agencies expect that States will, however, be able to focus their section 303(d) financial resources on a more targeted range of waters and could accelerate adoption of plans and standards on waters that may VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22334 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations have more ecological value. If Western States, for example, do not need to assess dry washes in the desert and establish CWA water quality standards for those typically dry ‘‘waters,’’ they can focus their research and restoration resources on waters with more substantial aquatic habitat. For additional discussion of potential effects on State and tribal water quality standards and section 303(d) programs, see the RPA. Some commenters on the proposed rule raised concerns about its potential effects on CWA financial assistance programs. The agencies do not anticipate that the final rule will affect the EPA’s current CWA financial assistance programs. With respect to CWA sections 106 and 319 grant programs, the authorizing language and the range of programmatic activities are sufficiently broad that they have long addressed both jurisdictional and non- jurisdictional waters, so it is unlikely that a change in the definition of ‘‘waters of the United States’’ will affect the programs and funding allocations. Other commenters raised concerns about potential effects of the proposed rule on sources of drinking water. Drinking water regulations under the Safe Drinking Water Act (SDWA) will continue to apply to water delivered by public water systems, with the goal of protecting public health. The Drinking Water State Revolving Fund is available to help fund State source water protection programs and finance improvements to drinking water utilities. Overall, the potential effects of a change in CWA jurisdiction on drinking water quality will depend on whether activities affecting non- jurisdictional waters also affect the quality of the water at a drinking water utility’s water intake, and the capabilities of individual drinking water utilities to respond to a potential change in source water quality. In the EA for the proposed rule, the agencies applied a two-stage analysis to make the best use of limited local and national level water resource information in their effort to assess the potential implications of the proposal. When the proposed rule was published, the agencies determined that the outputs of this two-stage analysis were the best way to illustrate the potential overall impact of the proposed rule compared to the 2015 Rule being in effect nationwide (i.e., the sum effect of both stages) and the 2015 Rule not being in effect (i.e., second stage only). In the ‘‘Stage 1’’ analysis in the EA for the proposed rule, the agencies used the EA for the 2015 Rule as a starting point, made several updates, and developed a quantitative assessment limited to Stage 1. Because the 2015 Rule was repealed (84 FR 56626) between the proposed and final rule stages of this rulemaking, the EA for this final rule does not contain the Stage 1 quantitative analysis comparing the 2015 Rule with the pre- existing regulations. The EA for the final rule incorporates an updated analysis depicting how States may respond to a change in CWA jurisdiction. This analysis of State authorities and programs was initially presented in the EA for the related rulemaking effort, Economic Analysis for the Final Rule: Definition of ‘‘Waters of the United States’’—Recodification of Pre-Existing Rules. Potential State responses to a change in the definition of a ‘‘water of the United States’’ fall along a continuum and depend on legal and other constraints. Some States rely on the federal CWA to regulate impacts to wetlands and other aquatic resources. These States may be affected by this action; however, nothing in the CWA or this final rule prevents or precludes states from regulating more stringently than federal requirements. Some States, based on limitations established in State law, cannot currently regulate a more expansive set of waters than those subject to the federal CWA definition of ‘‘waters of the United States.’’ In contrast, States that regulate surface waters and wetlands as broadly as or more broadly than the 2019 Rule as implemented, independently of the scope of the federal CWA, may not be affected by this action. Complete State ‘‘gap-filling’’ could result in no change in compliance costs to the regulated community and no change in environmental benefits (that is, neither avoided costs nor forgone benefits would occur), suggesting a zero-net impact in the long-run. States that fall between these extremes are evaluated by either including or excluding them from the estimates of cost savings and forgone benefits. In reality, some States may regulate only a subset of affected waters, but the agencies did not have sufficient information to incorporate that level of detail into the analysis. Another potential outcome of the change in CWA jurisdiction is that State governments may be able to find more efficient ways of managing local resources than the Federal government, consistent with the theory of ‘‘environmental federalism’’ as described in the EA for the final rule. Depending on the value of a newly characterized non-jurisdictional water, States may or may not choose to regulate that water and the compliance costs and environmental benefits of its regulation could increase or decrease, respectively. In either case, however, net benefits would increase, assuming that a State can more efficiently allocate resources towards environmental protection due to local knowledge of amenities and constituent preferences. As effective regulation requires political capital and fiscal resources, however, the likely best indication of the way in which States will exercise their authority as the Federal government changes the scope of CWA jurisdiction is the way in which they have exercised authority in the past and whether the infrastructure to manage the regulatory programs already exists. The qualitative analysis is intended to provide information on the likely direction of the potential effects of the final rule on CWA regulatory programs. In addition, the agencies conducted case studies in three major watersheds (Ohio River basin, Lower Missouri River basin, and Rio Grande River basin) to provide information for a quantitative assessment of the potential effects of the final rule. The case studies considered potential ecological effects, and their accompanying potential economic effects for programs implemented pursuant to sections 311, 402, and 404 of the CWA. Because of data limitations, the agencies were able to provide national-level estimates of the potential avoided permit and mitigation costs and forgone benefits for only the CWA section 404 program. The agencies developed several scenarios to estimate the national annual avoided costs and foregone benefits of the CWA section 404 program under the final rule using different assumptions about potential State dredged and fill regulation of waters. Using the same methodologies employed in the case studies, under scenarios assuming State regulation of dredged and fill activities in newly non- jurisdictional waters, the agencies estimate that the final rule would produce annual avoided costs ranging between $109 million to $264 million and annual forgone benefits ranging between from $55 million to $63 million. Under the scenario that assumes that no States will regulate dredged and fill activities in newly non- jurisdictional waters, an outcome the agencies believe is unlikely, the agencies estimate the final rule would produce annual avoided costs ranging from $245 million to $513 million, and annual forgone benefits are estimated at $173 million. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22335 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review This action is an ‘‘economically significant regulatory action’’ that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, the agencies prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in the Economic Analysis for the Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States,’’ which is available in the docket and briefly summarized in Section V. Additional analysis can be found in the Resource and Programmatic Assessment for the Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ which is also available in the docket. While the economic analysis is informative in the rulemaking context, the agencies are not relying on the economic analysis performed pursuant to Executive Orders 12866 and 13563 and related procedural requirements as a basis for this final rule. See, e.g., NAHB, 682 F.3d at 1039–40 (noting that the quality of an agency’s economic analysis can be tested under the APA if the ‘‘agency decides to rely on a cost- benefit analysis as part of its rulemaking’’). B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs Pursuant to Executive Order 13771 (82 FR 9339, February 3, 2017), this final rule is a deregulatory action. Details on the estimated cost savings of this rule can be found in the Economic Analysis in the docket for this rule. C. Paperwork Reduction Act This action does not impose any new information collection burden under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2050–0021 and 2050– 0135 for the CWA section 311 program and 2040–0004 for the CWA section 402 program. For the CWA section 404 program, the current OMB approval number for information requirements is maintained by the Corps (OMB approval number 0710–0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new Information Collection Request (ICR). D. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, ‘‘small entity’’ is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration’s size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. The purpose of the RFA is ‘‘to fit regulatory and informational requirements to the scale of the businesses, organizations and governmental jurisdictions subject to the regulation.’’ 5 U.S.C. 601. Small entities subject to this final rule are largely those entities whose activities are directly covered by the CWA sections 402, 404, and 311 programs. The final rule is expected to result in fewer entities subject to these programs, and a reduced regulatory burden for many of the entities that will still be subject to these programs. As a result, small entities subject to these regulatory programs are unlikely to suffer adverse impacts as a result of regulatory compliance. As addressed in the Economic Analysis for the final rule, narrowing the scope of CWA regulatory jurisdiction over waters may result in a reduction in the ecosystem services provided by some waters, and as a result, some entities may be adversely impacted. Some business sectors that depend on habitat, such as those catering to hunters or anglers, or that require water treatment to meet production needs, could experience a greater impact relative to other sectors. Potential changes in ecosystem services are likely to be small, infrequent, and dispersed over wide geographic areas, thereby limiting the significance of these impacts on these business sectors. In addition, States and Tribes may already address waters potentially affected by a revised definition, thereby reducing forgone benefits. The sectors likely to be most impacted by the rule are mitigation banks and companies that provide aquatic resource restoration services. Because fewer waters would be subject to the CWA regulation under the final rule than are subject to regulation under the 2019 Rule, there may be a reduction in demand for mitigation and restoration services under the section 404 permitting program. Assessing impacts to this sector is problematic, however, because this sector lacks a precise SBA small business definition, and many of the businesses that fall within this sector are also classified under various other North American Industry Classification System (NAICS) categories. Furthermore, impacts to this sector would not be the direct result of these businesses complying with the final rule, rather, they would be the indirect result of other entities no longer being required to mitigate for discharges of dredged or fill material into waters that would no longer be jurisdictional under the final rule. In addition, potential impacts would be lessened when accounting for State and tribal dredged and fill programs that would necessitate the purchase of mitigation credits or through the actions of States and Tribes that choose to regulate their wetlands under State or tribal law. For a more detailed discussion see the RFA section of the Economic Analysis for the final rule. The agencies certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. As documented in the Economic Analysis for the final rule, the agencies do not expect the cost of the rule to result in adverse impact to a significant number of small entities, since the rule is expected to result in net cost savings for all entities affected by this rule. The agencies have therefore concluded that this action will relieve regulatory burden to small entities. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22336 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations E. Unfunded Mandates Reform Act This final rule does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The definition of ‘‘waters of the United States’’ applies broadly to CWA programs. The final action imposes no enforceable duty on any State, local, or tribal governments or the private sector, and does not contain regulatory requirements that significantly or uniquely affect small governments. F. Executive Order 13132: Federalism Consulting with State and local government officials, or their representative national organizations, is an important step in the process prior to proposing regulations that may have implications for State and local governments under the terms of Executive Order 13132 (64 FR 43255, August 10, 1999). State and local governments were engaged in a 60-day Federalism consultation at the outset of rule development starting on April 19, 2017. All letters received by the agencies during Federalism consultation may be found on in the docket at EPA Docket Id No. EPA–HQ–OW–2018– 0149–0088, available at https:// www.regulations.gov/document?D=EPA- HQ-OW-2018-0149-0088. The agencies held nineteen Federalism meetings between April 19 and June 16, 2017. Seventeen intergovernmental associations, including nine of the ten organizations identified in EPA’s 2008 E.O. 13132 Guidance, attended the initial Federalism consultation meeting, as well as several associations representing State and local governments. Organizations in attendance included: The National Governors Association, the National League of Cities, the National Association of Counties, the U.S. Conference of Mayors, the Council of State Governments, the National Conference of State Legislatures, the County Executives of America, the National Association of Towns and Townships, the Environmental Council of the States, the Western Governors Association, the National Association of Clean Water Agencies, the Association of Clean Water Administrators, the National Association of State Departments of Agriculture, the Association of State Wetlands Managers, the Association of State Floodplain Managers, the National Water Resources Association, the State/Local Legal Center, and several members of EPA’s Local Government Advisory Committee (LGAC). The LGAC met 10 times during this period to address the charge given to its members by the EPA Administrator on a revised rule and completed a report addressing the questions outlined in their charge. The July 14, 2017, final report can be obtained here: https:// www.epa.gov/sites/production/files/ 2017-07/documents/lgac-final- wotusreport-july2017.pdf and in the docket as attachment to EPA Docket Id No. EPA–HQ–OW–2018–0149–0088, available at https:// www.regulations.gov/document?D=EPA- HQ-OW-2018-0149-0088. The agencies then conducted additional outreach to States prior to proposing the rule to ensure that the agencies could hear the perspectives on how the agencies might revise the definition of ‘‘waters of the United States’’ from State co-regulators. The agencies held two additional webinars, the first for Tribes, States, and local governments on December 12, 2017; and one for States on February 20, 2018. In addition, one in-person meeting to seek technical input on the development of the proposed rule was held with a group of nine states (Arizona, Arkansas, Florida, Iowa, Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming) on March 8 and 9, 2018. These meetings and the letters provided by representatives provided a wide and diverse range of interests, positions, comments, and recommendations to the agencies. The agencies have prepared a report summarizing their consultation and additional outreach to State and local governments and the results of this outreach. A copy of the final report is available in the docket (Docket Id. No. EPA–HQ–OW–2018–0149) for this final rule. Following publication of the proposed rule, the agencies held four additional in-person meetings with State representatives to answer clarifying questions about the proposal, and to discuss implementation considerations and State interest in working with the agencies to develop geospatial datasets of water resources as articulated in the preamble to the proposed rule. Under the technical requirements of Executive Order 13132, agencies must conduct a federalism consultation as outlined in the Executive Order for regulations that (1) have federalism implications, that impose substantial direct compliance costs on state and local governments, and that are not required by statute; or (2) that have federalism implications and that preempt state law. This rule does not impose any new costs or other requirements on states, preempt state law, or limit states’ policy discretion; rather, it provides more discretion for states as to how best to manage waters under their sole jurisdiction. Executive Order paras. (6)(b) and (6)(c). As discussed in the earlier sections of the notice, this final rule establishes a clear boundary between waters subject to federal regulatory requirements under the CWA and those that States may solely manage under their independent authorities. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The rule preserves State authority to choose whether or not to regulate waters that are not waters of the United States under the CWA. The agencies believe that the requirements of the Executive Order have been satisfied in any event. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, Nov. 9, 2000), requires the agencies to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. During tribal consultation and engagement efforts and in tribal comments on the proposed rule, many Tribes expressed concern that the proposed rule would or could adversely impact tribal waters. Two tribes supported the proposed rule and noted that it would increase the tribes’ ability to manage and regulate their own Reservation lands. The agencies acknowledge that because they generally implement CWA programs on tribal lands, a reduced scope of CWA jurisdiction will affect Tribes differently than it will affect States. Currently, of the Tribes that are eligible, most have not received treatment in a manner similar to a state (TAS) status to administer CWA regulatory programs. While some Tribes have established tribal water programs under tribal law or have the authority to establish tribal programs under tribal law, many Tribes may lack the capacity to create a tribal water program under tribal law, to VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22337 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations administer a program, or to expand programs that currently exist. Other Tribes may rely on the Federal government for enforcement of water quality violations. Nonetheless, the rule preserves tribal authority to choose whether or not to regulate waters that are not covered under the CWA. Any decision by the Tribes to protect beyond the limits of the CWA is not compelled by the statute or by this final rule. The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this action to permit them to have meaningful and timely input into its development. The Department of the Army participated in the consultation process and further engagement with Tribes. All letters received by the agencies during tribal consultation may be found in the docket for this action, Docket Id. No. EPA–HQ–OW–2018– 0149. The EPA initiated a tribal consultation and coordination process before proposing this rule by sending a ‘‘Notification of Consultation and Coordination’’ letter on April 20, 2017, to all of the 567 Tribes federally recognized at that time. The letter invited tribal leaders and designated consultation representatives to participate in the tribal consultation and coordination process. The agencies held two identical webinars concerning this matter for tribal representatives on April 27 and May 18, 2017. Tribes and tribal organizations sent 44 pre-proposal comment letters to the agencies as part of the consultation process. Of those Tribes requesting consultation, the agencies met with nine Tribes at a staff- level and with three Tribes at a leader- to-leader level pre-proposal. The agencies continued engagement with Tribes after the end of the formal consultation, including at national update webinars on December 12, 2017, and February 20, 2018, and an in-person tribal co-regulators workshop on March 6 and 7, 2018. Following the publication of the proposed rule, the agencies held four in- person meetings with tribal representatives to answer clarifying questions about the proposal, and to discuss implementation considerations and tribal interest in working with the agencies to develop geospatial datasets of water resources as articulated in the preamble to the proposed rule. In addition, the agencies continued to meet with individual Tribes requesting consultation or engagement following publication of the proposed rule, holding staff-level meetings with four Tribes and leader-to-leader level meetings with eight Tribes post- proposal. The agencies also continued engaging with Tribes and tribal organizations via listening sessions at regional and national tribal meetings. In total, the agencies met with 21 individual Tribes requesting consultation, holding leader-to-leader level consultation meetings with 11 individual tribes and staff-level meetings with 13 individual tribes (the agencies met with some tribes more than once). The agencies have prepared a report summarizing the consultation and further engagement with tribal nations. This report, Summary Report of Tribal Consultation and Engagement for the Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ (Docket Id. No. EPA–HQ–OW– 2018–0149), is available in the docket for this final rule. As required by section 7(a), the EPA’s Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action. H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a ‘‘significant energy action’’ as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. J. National Technology Transfer and Advancement Act This action is not subject to the National Technology Transfer and Advancement Act of 1995 because the rule does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations This action is not subject to Executive Order 12898 (59 FR 7629, February 11, 1994) because there is no significant evidence of disproportionately high and adverse human health or environmental effects on minority populations, low- income populations, and/or indigenous peoples, as specified in Executive Order 12898. L. Congressional Review Act This action is subject to the Congressional Review Act, and the agencies will submit a rule report to each House of the Congress and to the Comptroller General of the United States. OMB has concluded that this action is a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects 33 CFR Part 328 Navigation (water), Water pollution control, Waterways. 40 CFR Part 110 Oil pollution, Reporting and recordkeeping requirements. 40 CFR Part 112 Oil pollution, Penalties, Reporting and recordkeeping requirements. 40 CFR Part 116 Hazardous substances, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 117 Hazardous substances, Penalties, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 120 Environmental protection, Water pollution control, Waterways. 40 CFR Part 122 Administrative practice and procedure, Confidential business information, Environmental protection, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control. 40 CFR Part 230 Water pollution control. 40 CFR Part 232 Intergovernmental relations, Water pollution control. 40 CFR Part 300 Air pollution control, Carbon monoxide, Chemicals, Environmental protection, Greenhouse gases, Hazardous substances, Hazardous waste, Intergovernmental relations, Lead, Natural resources, Occupational safety and health, Oil pollution, Ozone, Penalties, Reporting and recordkeeping requirements, Sulfur Dioxide, Superfund, Volatile organic compounds, Water pollution control, Water supply. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22338 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations 40 CFR Part 302 Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. 40 CFR Part 401 Waste treatment and disposal, Water pollution control. Dated: January 23, 2020. Andrew R. Wheeler, Administrator, Environmental Protection Agency. Dated: January 23, 2020. R.D. James, Assistant Secretary of the Army (Civil Works), Department of the Army. Title 33—Navigation and Navigable Waters For the reasons set forth in the preamble, title 33, chapter II of the Code of Federal Regulations is amended as follows: PART 328—DEFINITION OF WATERS OF THE UNITED STATES ■1. Authority: The authority citation for part 328 is revised read as follows: 33 U.S.C. 1251 et seq. ■2. Section 328.3 is amended by revising paragraphs (a) through (c) and removing paragraphs (d) through (f) to read as follows: §328.3 Definitions. * * * * * (a) Jurisdictional waters. For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term ‘‘waters of the United States’’ means: (1) The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (2) Tributaries; (3) Lakes and ponds, and impoundments of jurisdictional waters; and (4) Adjacent wetlands. (b) Non-jurisdictional waters. The following are not ‘‘waters of the United States’’: (1) Waters or water features that are not identified in paragraph (a)(1), (2), (3), or (4) of this section; (2) Groundwater, including groundwater drained through subsurface drainage systems; (3) Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools; (4) Diffuse stormwater run-off and directional sheet flow over upland; (5) Ditches that are not waters identified in paragraph (a)(1) or (2) of this section, and those portions of ditches constructed in waters identified in paragraph (a)(4) of this section that do not satisfy the conditions of paragraph (c)(1) of this section; (6) Prior converted cropland; (7) Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease; (8) Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non- jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) of this section; (9) Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel; (10) Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run- off; (11) Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and (12) Waste treatment systems. (c) Definitions. In this section, the following definitions apply: (1) Adjacent wetlands. The term adjacent wetlands means wetlands that: (i) Abut, meaning to touch at least at one point or side of, a water identified in paragraph (a)(1), (2), or (3) of this section; (ii) Are inundated by flooding from a water identified in paragraph (a)(1), (2), or (3) of this section in a typical year; (iii) Are physically separated from a water identified in paragraph (a)(1), (2), or (3) of this section only by a natural berm, bank, dune, or similar natural feature; or (iv) Are physically separated from a water identified in paragraph (a)(1), (2), or (3) of this section only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the water identified in paragraph (a)(1), (2), or (3) of this section in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. (2) Ditch. The term ditch means a constructed or excavated channel used to convey water. (3) Ephemeral. The term ephemeral means surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall). (4) High tide line. The term high tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds, such as those accompanying a hurricane or other intense storm. (5) Intermittent. The term intermittent means surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts). (6) Lakes and ponds, and impoundments of jurisdictional waters. The term lakes and ponds, and impoundments of jurisdictional waters means standing bodies of open water that contribute surface water flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or through one or more waters identified in paragraph (a)(2), (3), or (4) of this section. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake or pond, or impoundment of a jurisdictional water VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22339 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations is also jurisdictional if it is inundated by flooding from a water identified in paragraph (a)(1), (2), or (3) of this section in a typical year. (7) Ordinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. (8) Perennial. The term perennial means surface water flowing continuously year-round. (9) Prior converted cropland. The term prior converted cropland means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. EPA and the Corps will recognize designations of prior converted cropland made by the Secretary of Agriculture. An area is no longer considered prior converted cropland for purposes of the Clean Water Act when the area is abandoned and has reverted to wetlands, as defined in paragraph (c)(16) of this section. Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. For the purposes of the Clean Water Act, the EPA Administrator shall have the final authority to determine whether prior converted cropland has been abandoned. (10) Snowpack. The term snowpack means layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (e.g., in northern climes or mountainous regions). (11) Tidal waters and waters subject to the ebb and flow of the tide. The terms tidal waters and waters subject to the ebb and flow of the tide mean those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters and waters subject to the ebb and flow of the tide end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects. (12) Tributary. The term tributary means a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or through one or more waters identified in paragraph (a)(2), (3), or (4) of this section. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of this definition. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of this definition. (13) Typical year. The term typical year means when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period. (14) Upland. The term upland means any land area that under normal circumstances does not satisfy all three wetland factors (i.e., hydrology, hydrophytic vegetation, hydric soils) identified in paragraph (c)(16) of this section, and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water. (15) Waste treatment system. The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). (16) Wetlands. The term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. * * * * * Title 40—Protection of Environment For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 110—DISCHARGE OF OIL ■3. The authority citation for part 110 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971–1975 Comp., p. 793. ■4. Section 110.1 is amended by revising the definition of ‘‘Navigable waters’’ and removing the definition of ‘‘Wetlands’’ to read as follows: §110.1 Definitions. * * * * * Navigable waters means waters of the United States, including the territorial seas, as defined in §120.2 of this chapter. * * * * * PART 112—OIL POLLUTION PREVENTION ■5. The authority citation for part 112 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■6. Section 112.2 is amended by revising the definition of ‘‘Navigable waters’’ and removing the definition of ‘‘Wetlands’’ to read as follows: §112.2 Definitions. * * * * * Navigable waters means waters of the United States, including the territorial seas, as defined in §120.2 of this chapter. * * * * * PART 116—DESIGNATION OF HAZARDOUS SUBSTANCES ■7. The authority citation for part 116 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■8. Section 116.3 is amended by revising the definition of ‘‘Navigable waters’’ to read as follows: §116.3 Definitions. * * * * * Navigable waters means ‘‘waters of the United States,’’ including the territorial seas, as defined in §120.2 of this chapter. * * * * * PART 117—DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES ■9. The authority citation for part 117 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735, superseded by Executive Order 12777, 56 FR 54757. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22340 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations ■10. Section 117.1 is amended by revising paragraph (i) to read as follows: §117.1 Definitions. * * * * * (i) Navigable waters means ‘‘waters of the United States, including the territorial seas,’’ as defined in §120.2 of this chapter. * * * * * ■11. Add part 120 to read as follows: PART 120—DEFINITION OF WATERS OF THE UNITED STATES Sec. 120.1 Purpose and scope. 120.2 Definitions. Authority: 33 U.S.C. 1251 et seq. §120.1 Purpose and scope. Part 120 contains the definition of ‘‘navigable waters’’ and ‘‘waters of the United States’’ for purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations. §120.2 Definitions. For the purposes of this part, the following terms shall have the meanings indicated: Navigable waters means waters of the United States, including the territorial seas. Waters of the United States means: (1) Jurisdictional waters. For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means: (i) The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (ii) Tributaries; (iii) Lakes and ponds, and impoundments of jurisdictional waters; and (iv) Adjacent wetlands. (2) Non-jurisdictional waters. The following are not ‘‘waters of the United States’’: (i) Waters or water features that are not identified in paragraph (1)(i), (ii), (iii), or (iv) of this definition; (ii) Groundwater, including groundwater drained through subsurface drainage systems; (iii) Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools; (iv) Diffuse stormwater run-off and directional sheet flow over upland; (v) Ditches that are not waters identified in paragraph (1)(i) or (ii) of this definition, and those portions of ditches constructed in waters identified in paragraph (1)(iv) of this definition that do not satisfy the conditions of paragraph (3)(i) of this definition; (vi) Prior converted cropland; (vii) Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease; (viii) Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non- jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (3)(vi) of this definition; (ix) Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non- jurisdictional waters for the purpose of obtaining fill, sand, or gravel; (x) Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run- off; (xi) Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and (xii) Waste treatment systems. (3) Definitions. In this section, the following definitions apply: (i) Adjacent wetlands. The term adjacent wetlands means wetlands that: (A) Abut, meaning to touch at least at one point or side of, a water identified in paragraph (1)(i), (ii), or (iii) of this definition; (B) Are inundated by flooding from a water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year; (C) Are physically separated from a water identified in paragraph (1)(i), (ii), or (iii) of this definition only by a natural berm, bank, dune, or similar natural feature; or (D) Are physically separated from a water identified in paragraph (1)(i), (ii), or (iii) of this definition only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. (ii) Ditch. The term ditch means a constructed or excavated channel used to convey water. (iii) Ephemeral. The term ephemeral means surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall). (iv) High tide line. The term high tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds, such as those accompanying a hurricane or other intense storm. (v) Intermittent. The term intermittent means surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts). (vi) Lakes and ponds, and impoundments of jurisdictional waters. The term lakes and ponds, and impoundments of jurisdictional waters means standing bodies of open water that contribute surface water flow to a water identified in paragraph (1)(i) of this definition in a typical year either directly or through one or more waters identified in paragraph (1)(ii), (iii), or (iv) of this definition. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake or pond, or impoundment of a jurisdictional water is also jurisdictional if it is inundated by flooding from a water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22341 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations (vii) Ordinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. (viii) Perennial. The term perennial means surface water flowing continuously year-round. (ix) Prior converted cropland. The term prior converted cropland means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. EPA and the Corps will recognize designations of prior converted cropland made by the Secretary of Agriculture. An area is no longer considered prior converted cropland for purposes of the Clean Water Act when the area is abandoned and has reverted to wetlands, as defined in paragraph (3)(xvi) of this definition. Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. For the purposes of the Clean Water Act, the EPA Administrator shall have the final authority to determine whether prior converted cropland has been abandoned. (x) Snowpack. The term snowpack means layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (e.g., in northern climes or mountainous regions). (xi) Tidal waters and waters subject to the ebb and flow of the tide. The terms tidal waters and waters subject to the ebb and flow of the tide mean those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters and waters subject to the ebb and flow of the tide end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects. (xii) Tributary. The term tributary means a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a water identified in paragraph (1)(i) of this definition in a typical year either directly or through one or more waters identified in paragraph (1)(ii), (iii), or (iv) of this definition. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of this definition. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non- jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of this definition. (xiii) Typical year. The term typical year means when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period. (xiv) Upland. The term upland means any land area that under normal circumstances does not satisfy all three wetland factors (i.e., hydrology, hydrophytic vegetation, hydric soils) identified in paragraph (3)(xvi) of this definition, and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water. (xv) Waste treatment system. The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). (xvi) Wetlands. The term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM ■12. The authority citation for part 122 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. ■13. Section 122.2 is amended by: ■a. Lifting the suspension of the last sentence of the definition of ‘‘Waters of the United States’’ published July 21, 1980 (45 FR 48620). ■b. Revising the definition of ‘‘Waters of the United States’’. ■c. Removing the definition of ‘‘Wetlands’’. The revision reads as follows: §122.2 Definitions. * * * * * Waters of the United States or waters of the U.S. means the term as it is defined in §120.2 of this chapter. * * * * * PART 230—SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL ■14. The authority citation for part 230 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■15. Section 230.3 is amended by: ■a. Removing paragraph (b) and reserved paragraphs (f), (g), (j), and (l); ■b. Redesignating paragraphs (c) through (e) as paragraphs (b) through (d); ■c. Redesignating paragraphs (h) and (i) as paragraphs (e) and (f) ■d. Redesignating paragraph (k) as paragraph (g); ■e. Redesignating paragraphs (m) through (q) as paragraphs (h) through (l); ■f. Redesignating paragraph (q-1) as paragraph (m); ■g. Redesignating paragraph (r) as paragraph (n); ■h. Redesignating paragraph (s) as paragraphs (o); ■i. Revising newly designated paragraph (o); and ■j. Removing paragraph (t). The revision reads as follows: §230.3 Definitions. * * * * * (o) Waters of the United States means the term as it is defined in §120.2 of this chapter. PART 232—404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS ■16. The authority citation for part 232 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■17. Section 232.2 is amended by revising the definition of ‘‘Waters of the United States’’ and removing the definition of ‘‘Wetlands’’ to read as follows: §232.2 Definitions. * * * * * Waters of the United States means the term as it is defined in §120.2 of this chapter. VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 22342 Federal Register /Vol. 85, No. 77/Tuesday, April 21, 2020/Rules and Regulations PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN ■18. The authority citation for part 300 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■19. Section 300.5 is amended by revising the definition of ‘‘Navigable waters’’ to read as follows: §300.5 Definitions. * * * * * Navigable waters means the waters of the United States, including the territorial seas, as defined in §120.2 of this chapter. * * * * * ■20. In appendix E to part 300, section 1.5 Definitions is amended by revising the definition of ‘‘Navigable waters’’ to read as follows: Appendix E to Part 300—Oil Spill Response * * * * * 1.5 Definitions. *** Navigable waters means the waters of the United States, including the territorial seas, as defined in §120.2 of this chapter. * * * * * PART 302— DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION ■21. The authority citation for part 302 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■22. Section 302.3 is amended by revising the definition of ‘‘Navigable waters’’ to read as follows: §302.3 Definitions. * * * * * Navigable waters means the waters of the United States, including the territorial seas, as defined in §120.2 of this chapter. * * * * * PART 401— GENERAL PROVISIONS ■23. The authority citation for part 401 is revised to read as follows: Authority: 33 U.S.C. 1251 et seq. ■24. Section 401.11 is amended by revising paragraph (l) to read as follows: §401.11 General definitions. * * * * * (l) Navigable waters means ‘‘waters of the United States, including the territorial seas,’’ as defined in §120.2 of this chapter. [FR Doc. 2020–02500 Filed 4–20–20; 8:45 am] BILLING CODE 6560–50–P VerDate Sep<11>2014 20:12 Apr 20, 2020 Jkt 250001 PO 00000 Frm 00094 Fmt 4701 Sfmt 9990 E:\FR\FM\21APR2.SGM 21APR2 lotter on DSKBCFDHB2PROD with RULES2 Reference 15 § 120.2 Definitions. For the purposes of this part, the following terms shall have the meanings indicated: Navigable waters means waters of the United States, including the territorial seas. Waters of the United States means: (1) Jurisdictional waters. For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term “waters of the United States” means: (i) The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (ii) Tributaries; (iii) Lakes and ponds, and impoundments of jurisdictional waters; and (iv) Adjacent wetlands. (2) Non-jurisdictional waters. The following are not “waters of the United States”: (i) Waters or water features that are not identified in paragraph (1)(i), (ii), (iii), or (iv) of this definition; (ii) Groundwater, including groundwater drained through subsurface drainage systems; (iii) Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools; (iv) Diffuse stormwater run-off and directional sheet flow over upland; (v) Ditches that are not waters identified in paragraph (1)(i) or (ii) of this definition, and those portions of ditches constructed in waters identified in paragraph (1)(iv) of this definition that do not satisfy the conditions of paragraph (3)(i) of this definition; (vi) Prior converted cropland; (vii) Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease; (viii) Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (3)(vi) of this definition; (ix) Water-filled depressions constructed or excavated in upland or in non- jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel; (x) Stormwater control features constructed or excavated in upland or in non- jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off; (xi) Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and (xii) Waste treatment systems. (3) Definitions. In this section, the following definitions apply: (i) Adjacent wetlands. The term adjacent wetlands means wetlands that: (A) Abut, meaning to touch at least at one point or side of, a water identified in paragraph (1)(i), (ii), or (iii) of this definition; (B) Are inundated by flooding from a water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year; (C) Are physically separated from a water identified in paragraph (1)(i), (ii), or (iii) of this definition only by a natural berm, bank, dune, or similar natural feature; or (D) Are physically separated from a water identified in paragraph (1)(i), (ii), or (iii) of this definition only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. (ii) Ditch. The term ditch means a constructed or excavated channel used to convey water. (iii) Ephemeral. The term ephemeral means surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall). (iv) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds, such as those accompanying a hurricane or other intense storm. (v) Intermittent. The term intermittent means surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts). (vi) Lakes and ponds, and impoundments of jurisdictional waters. The term lakes and ponds, and impoundments of jurisdictional waters means standing bodies of open water that contribute surface water flow to a water identified in paragraph (1)(i) of this definition in a typical year either directly or through one or more waters identified in paragraph (1)(ii), (iii), or (iv) of this definition. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake or pond, or impoundment of a jurisdictional water is also jurisdictional if it is inundated by flooding from a water identified in paragraph (1)(i), (ii), or (iii) of this definition in a typical year. (vii) Ordinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. (viii) Perennial. The term perennial means surface water flowing continuously year-round. (ix) Prior converted cropland. The term prior converted cropland means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. EPA and the Corps will recognize designations of prior converted cropland made by the Secretary of Agriculture. An area is no longer considered prior converted cropland for purposes of the Clean Water Act when the area is abandoned and has reverted to wetlands, as defined in paragraph (3)(xvi) of this definition. Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. For the purposes of the Clean Water Act, the EPA Administrator shall have the final authority to determine whether prior converted cropland has been abandoned. (x) Snowpack. The term snowpack means layers of snow that accumulate over extended periods of time in certain geographic regions or at high elevation (e.g., in northern climes or mountainous regions). (xi) Tidal waters and waters subject to the ebb and flow of the tide. The terms tidal waters and waters subject to the ebb and flow of the tide mean those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters and waters subject to the ebb and flow of the tide end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects. (xii) Tributary. The term tributary means a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a water identified in paragraph (1)(i) of this definition in a typical year either directly or through one or more waters identified in paragraph (1)(ii), (iii), or (iv) of this definition. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of this definition. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of this definition. (xiii) Typical year. The term typical year means when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period. (xiv) Upland. The term upland means any land area that under normal circumstances does not satisfy all three wetland factors (i.e., hydrology, hydrophytic vegetation, hydric soils) identified in paragraph (3)(xvi) of this definition, and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water. (xv) Waste treatment system. The term waste treatment system includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). (xvi) Wetlands. The term wetlands means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. The Tank Farm Property Was Never a Wetland A basic premise for the current design of the remediaƟon of the Tank Farm property is that they are restoring a preexisƟng wetland to its natural state. This has no basis in fact. United States Geological Survey – 1897 United States Geological Survey maps from 1897 include designaƟons for wetlands, as indicated by the symbols surrounding Laguna Lake. Things to note: No wetland is present on the Tank Farm property. The land is flat, without any obvious depressions. The stream noted is at a very different locaƟon, running almost directly towards the South Hills that feeds it, not through Horizon Lane. (Indicated with ▲) Photographs from 1910 on the property: Photographs taken during the construcƟon of the property give no indicaƟon of water inundated soil or hydrophyƟc plants. The photographs feature dry ground and a near featureless expanse of flat land. Regulatory DefiniƟons of a Wetland Not only was the Tank Farm property never a wetland, the property in its current state sƟll does not qualify as a wetland for the purposes of regulaƟon. I’ve pulled the regulatory definiƟon from three different sources below. DefiniƟon of a Wetland NaƟonal Research Council – 1995 p. 55 Key Criteria: Hydric soils HydrophyƟc vegetaƟon Recurrent sustained inundaƟon or saturaƟon at or near the surface. Environmental ProtecƟon Agency – Waters of the United States 2023 – From the Federal Register Key Criteria: Hydrology Hydric soils HydrophyƟc vegetaƟon Lacks an Ordinary High Water Mark (OHWM) Army Corps of Engineers Key Criteria: Hydrology Hydric soils HydrophyƟc vegetaƟon From JurisdicƟonal DeterminaƟons and DelineaƟng Waters of the United States, including Wetlands Padres Associates, Inc / WSP Environment and Energy – December 2008 OperaƟonal Guidebook to Assessment of Riverine Waters/Wetlands FuncƟons at the Chevron Tank Farm Facility This guidebook is interesƟng in that it analyzes the soil type, vegetaƟon and water saturaƟon of soil on the site, but makes no effort to determine that Regulatory Wetlands historically existed on the site, instead lisƟng any depression as a wetland and every ditch as a riverine complex. Let’s use the definiƟons above and look at the evidence they collected and see how it fits. Soils SecƟon of the Report The soil on the site is Xererts-Xerolls-Urban soil type. Xererts & Xerolls The Xererts and Xerolls components of the soil are described idenƟcally as: “deep and well drained… not flooded or ponded and there is no zone of water saturaƟon within 72 inches of the soil surface”. This precludes this soil type supporƟng hydrology requirement of the definiƟon of wetlands. It also isn’t considered a hydric soil, or to quote the report “The soil does not meet the hydric criteria”. Urban Urban is the soil type designaƟon typically used for human transported or modified soil (fill for berms, etc.). SoilWeb, an online soil resource provided by UC Davis indicates that Urban soil is typically classified as non- hydric. North Marsh The areas inside the Union Oil constructed berms are obviously created as the result of human ac Ɵvity, so lets focus on the only vaguely natural looking wetland on the property, the North Marsh. Let’s see how this claim compares with Aerial Surveys of the North Marsh area going back the be Ʃer part of a century. Looking at the 1939 and 1949 surveys, you can clearly see an arƟficially created drainage ditch travelling at a diagonal from one road culvert to another, only bending to reroute around a berm, and cu ƫng through what was once the locaƟon an oil storage tank. The North Marsh’s origin are as an erosional feature of a drainage ditch on an industrial site, not the reemergence of a naturally occurring stream. Aerial Survey - 1939-05-02 Aerial Survey - 1949-01-01 Aerial Survey - 1959-11-06 Aerial Survey - 1969-02-13 Aerial Survey - 1985-03-14 Aerial Survey - 1994-09-01 Google Earth Historical Imagery - 2003-07 Google Earth Historical Imagery - 2015-04 “North Marsh” Images