401 Water Quality Certification

South Carolina Department of Health South Carolina Department of Health and Environmental Controland Environmental Control

Water Quality Standards and 401 Water Quality Certification

evaluate proposed projects in waters of evaluate proposed projects in waters of the state -including wetlands- to determine the state -including wetlands- to determine

if they will contravene water quality if they will contravene water quality standards (SC R.61-68) and/or eliminate standards (SC R.61-68) and/or eliminate classified or existing uses (SC R.61-69)classified or existing uses (SC R.61-69)

Section 401 of the Federal Clean Water Act Section 401 of the Federal Clean Water Act requires that all Army Corps of Engineers requires that all Army Corps of Engineers 404 Permits obtain a 401 Water Quality 404 Permits obtain a 401 Water Quality Certification without which a 404 permit Certification without which a 404 permit cannot be issuedcannot be issued

SC Regulation 61-101 – Water Quality SC Regulation 61-101 – Water Quality CertificationCertification

Authority and Implementation Regulations

What activities do we regulate with the 401 Water Quality Certification?

the discharge of dredged or fill material into waters of the United the discharge of dredged or fill material into waters of the United States – the Corps of Engineers has determined that this includes States – the Corps of Engineers has determined that this includes mechanized land clearingmechanized land clearing

Why?Why?

How are Wetlands/Waters Regulated? No specific State programNo specific State program

Dependent upon Federal program (must Dependent upon Federal program (must understand and interact directly with the understand and interact directly with the Federal Program)Federal Program)

Two prerequisite state certifications or a Two prerequisite state certifications or a Critical Area Permit Critical Area Permit

Federal ProgramSection 404 of the Clean Water Act

Administered by the Corps of EngineersAdministered by the Corps of Engineers Oversight and guidelines by USEPAOversight and guidelines by USEPA Input from US Fish and Wildlife Service, Input from US Fish and Wildlife Service,

National Marine Fisheries Service, and State National Marine Fisheries Service, and State Historic Preservation OfficeHistoric Preservation Office

401 and CZM certifications by DHEC401 and CZM certifications by DHEC

What Does Section 404 Regulate?

Only placement of fill or dredged Only placement of fill or dredged material into waters of the United Statedmaterial into waters of the United Stated

Waters of the US - 1977

Used for interstate or foreign commerceUsed for interstate or foreign commerce Interstate waters including wetlandsInterstate waters including wetlands Waters whose loss could affect interstate Waters whose loss could affect interstate

commercecommerce Impoundments of watersImpoundments of waters Tributaries to watersTributaries to waters Wetlands adjacent to watersWetlands adjacent to waters

Isolated WetlandsSWANCC v. Corps - 2001

Isolated waters and wetlands removed from Isolated waters and wetlands removed from Corps jurisdictionCorps jurisdiction

Waters must show connectivityWaters must show connectivity

SC’s Response to SWANCC

DHEC issues Emergency RegulationDHEC issues Emergency Regulation Continues to review fill in isolated Continues to review fill in isolated

wetlands through other permitting wetlands through other permitting programsprograms

SC Senate takes up wetlands legislationSC Senate takes up wetlands legislation

Federal Exemptions

Agriculture and forestryAgriculture and forestry Maintenance & emergency reconstructionMaintenance & emergency reconstruction Farm or stock ponds & irrigation ditchesFarm or stock ponds & irrigation ditches Drainage ditch maintenanceDrainage ditch maintenance Temporary sediment basinsTemporary sediment basins Farm, forest, and mining roadsFarm, forest, and mining roads

Permits and Certifications

Corps of Engineers PermitCorps of Engineers Permit IndividualIndividual NationwideNationwide

Sec. 401 Water Quality CertificationSec. 401 Water Quality Certification Coastal Zone Consistency CertificationCoastal Zone Consistency Certification Critical Area Permit (CAP)Critical Area Permit (CAP)

Wetlands Enforcement

EPA for unauthorized dischargesEPA for unauthorized discharges Corps for violations of permitted activitiesCorps for violations of permitted activities CZM conditions enforced by OCRMCZM conditions enforced by OCRM 401 certification conditions are enforced by 401 certification conditions are enforced by

the Corps as part of permitthe Corps as part of permit

SC’s Wetlands Protection Tools

SC Pollution Control ActSC Pollution Control Act Water Quality StandardsWater Quality Standards Coastal Zone ProgramsCoastal Zone Programs Strong Federal presenceStrong Federal presence Team approachTeam approach Mitigation bankingMitigation banking

SC Pollution Control Act

Waters of the state broadly defined Waters of the state broadly defined

Upheld in State Circuit Court - 1995Upheld in State Circuit Court - 1995

SC Definition of Waters““lakes, bays, sounds, ponds, impounding lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers,streams, reservoirs, springs, wells, rivers,streams, creeks, estuaries, marshes inlets, canals, the creeks, estuaries, marshes inlets, canals, the Atlantic Ocean within the territorial limits Atlantic Ocean within the territorial limits of the State and all other bodies of surface of the State and all other bodies of surface or underground water, natural or artificial, or underground water, natural or artificial, public or private inland or coastal, fresh or public or private inland or coastal, fresh or salt, which are wholly or partially within or salt, which are wholly or partially within or bordering the State or within its bordering the State or within its jurisdiction.”jurisdiction.”

DHEC’s Programs

Bureau of WaterBureau of Water Section 401 – CWASection 401 – CWA Section 402 – CWA (NPDES)Section 402 – CWA (NPDES) Navigable waters permitsNavigable waters permits SC Pollution Control ActSC Pollution Control Act

OCRMOCRM Alteration of critical areaAlteration of critical area Coastal zone consistencyCoastal zone consistency

South Carolina Water Quality Standards Applies to surface and ground watersApplies to surface and ground waters All waters are classifiedAll waters are classified Tributaries includedTributaries included Antidegradation RuleAntidegradation Rule

No separate application to DHECNo separate application to DHEC Joint public notice process (15 days)Joint public notice process (15 days) Joint P/N serves as application to DHECJoint P/N serves as application to DHEC Opportunity for a Public HearingOpportunity for a Public Hearing Preparation of a Staff AssessmentPreparation of a Staff Assessment Issue Notice of Proposed DecisionIssue Notice of Proposed Decision Issue/Deny Final CertificationIssue/Deny Final Certification

401 Certification Procedures

Staff Assessment of Water Quality Impacts(from SC R. 61-101)

whether the proposed activity is water dependent whether the proposed activity is water dependent and the intended purpose of the activityand the intended purpose of the activity

whether there are feasible alternatives to the whether there are feasible alternatives to the proposed activityproposed activity

all potential water quality impacts of the projectall potential water quality impacts of the project impact on existing and classified usesimpact on existing and classified uses physical, chemical, and biological impactsphysical, chemical, and biological impacts the effect on circulation patterns and water the effect on circulation patterns and water

movementmovement cumulative impactscumulative impacts

Wetland Classifications and Standards wetlands are considered waters of the Statewetlands are considered waters of the State no specific classifications or standards for no specific classifications or standards for

wetlandswetlands classifications and standards are taken from the classifications and standards are taken from the

adjacent (tributary to) watersadjacent (tributary to) waters ““where surface waters are not classified by where surface waters are not classified by

name the use classification and numeric name the use classification and numeric standards of the class of stream to which they standards of the class of stream to which they are tributary shall apply” (SC R. 61-68)are tributary shall apply” (SC R. 61-68)

Antidegradation

applicants must demonstrate that proposed applicants must demonstrate that proposed projects will maintain the water quality necessary projects will maintain the water quality necessary to protect the existing usesto protect the existing uses

Examples of antidegradation questions:Examples of antidegradation questions: Will the proposed project contribute to further Will the proposed project contribute to further

degradation of 303(d) listed waterbodies?degradation of 303(d) listed waterbodies? Will the proposed project cause the closure of Will the proposed project cause the closure of

shellfish harvesting areas?shellfish harvesting areas?

What is Mitigation?

AvoidanceAvoidance MinimizationMinimization CompensationCompensation

Mitigation Types

On site or off siteOn site or off site In kind or out of kindIn kind or out of kind CreationCreation

PreservationPreservation

Restoration Enhancement

How Much Mitigation is Needed?Using the SOP

Dominant effect of alterationDominant effect of alteration Duration of effectDuration of effect Existing wetlands conditionsExisting wetlands conditions Rarity rankingRarity ranking Type of wetlands lostType of wetlands lost Is the loss preventableIs the loss preventable

Mitigation Banking

Makes good sense ecologicallyMakes good sense ecologically Mitigation completed prior to impactMitigation completed prior to impact Increased chance of successIncreased chance of success Long-term managementLong-term management

http://www.scdhec.gov/water/ here you will find a list of all the 401 Project Managers