Step 4: Project Planning

Lead agencies must comply with AB52, which requires the lead agency to consider project effects on Tribal cultural resources and conduct consultation with California Native American Tribes early during the planning phase and prior to releasing a Mitigated Negative Declaration or Environmental Impact Report. The lead agency must give notice to California Native Tribes that have submitted a request for notice and that are traditionally and culturally affiliated with the geographic area of the project. AB52 does not apply to projects that are Categorically Exempt from CEQA as documented in a Notice of Exemption.

For more information and examples of notification to Tribes:

http://nahc.ca.gov/codes/

To identify which Tribe or Tribes should be notified contact:

The Native American Heritage Commission
1550 Harbor Blvd, Suite 100
West Sacramento, CA 95691
nahc@nahc.ca.gov
(916) 373-3710 • Fax: (916) 373-5471

You may also contact:

Sherri Norris
California Indian Environmental Alliance
NCRP Director of Tribal Engagement
sherri@cieawb.org
(510)848-2043

Resources for Tribes required to partner with a lead agency:

• State of California. Native American Heritage Commission: September 2019 Update-CA Lead Agency List
  https://nahc.ca.gov/2016/06/updated-lead-agency-list-july-2016/
• AB 52 Compliance Flowchart
• Technical Advisory AB 52 and Tribal Cultural Resources in CEQA.
  http://nahc.ca.gov/wp-content/uploads/2017/06/Technical-Advisory-AB-52-and-Tribal-Cultural-Resources-in-CEQA.pdf
• Native American Heritage Commission
  http://nahc.ca.gov/category/ab-52-ceqa-tribal-consultation/
• Govener’s Office of Planning and Research. https://www.opr.ca.gov/ceqa/tribal/
• NCRP IRWM Proposition 1 Frequently Asked Questions
  https://northcoastresourcepartnership.org/site/assets/uploads/2019/03/NCRP-Proposition-1-Round-1-Implementation-Solicitation-FAQ_03.15.19.pdf
• To assist lead agencies in the process, a sample letter for AB52 consultation is provided below
  AB52 Notification Template
• For projects that do not require formal AB52 consultation, a sample referral letter is suggested as good practice to provide voluntary notification to Tribes
  Tribal Referral Letter

Following are important CEQA/NEPA forms and resorces that are discussed in further detail below.

• Notice of Exemption Form

This form can be used by public agencies to file an Exemption to CEQA if the project is eligible for an exemption.

• CEQA Environmental Checklist Form

This form can be used in the early stages of project development to identify potential environmental impacts and is part of the CEQA process.

• Sample Federal Crosscutting Evaluation Form

This form is helpful in understanding additional federal environmental law compliance that may apply to your project. This form was developed for the Safe Drinking Water SRF Program, but highlights the Federal Acts projects will need to comply with.

Other Resources:

• CEQA / NEPA
  California Office of Planning and Research Handbook
  http://opr.ca.gov/docs/NEPA_CEQA_Handbook_Feb2014.pdf
• CEQA guidelines can be obtained at the California Natural Resources Agency website: http://resources.ca.gov/ceqa/
• State of California. 2019 California Environmental Quality Act (CEQA) Statute and Guideline
  http://resources.ca.gov/ceqa/docs/2019_CEQA_Statutes_and_Guidelines.pdf
• State of California. California Environmental Quality Act (CEQA) : Supplemental Documents. Accessed online Oct 27, 2021.
  https://resources.ca.gov/admin/Legal/CEQA-Supplemental-Documents

Since external resources are not managed by NCRP, the links provided may become broken without notice.  Please report broken links to NCRP by e-mailing kledhill@westcoastwatershed.com

Many water and wastewater projects may qualify for either a Statutory or Categorical Exemption.

STATUTORY EXEMPTIONS

Statutory exemptions from CEQA are granted by the State Legislature. These exemptions take several forms. Some statutory exemptions are complete exemptions from CEQA and other exemptions apply to only part of the requirements for CEQA.

Statutory exemptions that can apply to water and wastewater projects include an exemption for Feasibility and Planning Studies (CEQA Guidelines §15262). This exemption covers a project involving only feasibility or planning studies needed for possible future action which an agency, board, or commission has not approved, adopted, or funded.

The regulations include an exemption for Emergency Projects (CEQA Guidelines §15269[a]). The scope of an emergency is narrowly defined as a project to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster stricken area in which a state of emergency has been proclaimed by the Governor pursuant to the California Emergency Services Act. The exemption covers the emergency repairs (CEQA Guidelines §15269[b]) to publicly or privately owned serviced facilities necessary to maintain service essential to public health, safety, or welfare.

The exemption also covers specific actions necessary to prevent or mitigate an emergency (CEQA Guidelines §15269[c]). This exemption does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short-term.

CEQA also includes a statutory exemption for the installation of a pipeline that is less than one mile long constructed in a public right-of-way (CEQA Guidelines §15282[k]). The exemption also covers the maintenance, repair, restoration, removal, or demolition of an existing pipeline as long as the pipeline does not exceed one mile in length.

CATEGORICAL EXEMPTIONS

The Public Resources Code requires the CEQA guidelines to include a list of classes of projects which have been determined to not have a significant effect on the environment and which are therefore determined exempt from the provisions of CEQA. The following is a list of exemption classes commonly used for water and wastewater infrastructure projects. Projects meeting these classifications are declared categorically exempt from the requirement for preparation of environmental documentation. Although these projects may be exempt from the preparation of an environmental document, the Lead Agency is not exempt from environmental review to confirm that the project would not result in a significant impact. Additionally, the Lead Agency is not exempt from providing supporting documentation for federal coordination with federally-funded or partially federally-funded project (i.e. State Revolving Loans).

Existing Facilities (CEQA Guidelines §15301)

Class 1 exemptions consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, or mechanical equipment, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination that the project was exempt. The key in use of this exemption is the negligible or no expansion of an existing use.

Class 1 exemptions include projects such as existing facilities used to provide electric power, natural gas, water and sewer service, and other public utility services. The following actions generally qualify for this exemption, though the list is not exhaustive:

• The addition, deletion, or modification of mechanical controls, electrical controls, and hydraulic controls for water treatment units, water supply systems, and pump stations;
• Maintenance, repair, replacement, or reconstruction to any water treatment project units including structure, filters, pumps, and chlorinators;
• Maintenance of existing landscaping, native growth, and water supply reservoirs (excluding the use of pesticides as defined in Section 12753 Division 7, Chapter 2 of the Food and Agricultural Code);
• Minor repair and alterations of existing dams and appurtenant structures under the supervision of the Department of Water Resources or in officially mapped areas of severe geologic hazard.

Replacement or Reconstruction (CEQA Guidelines §15302)

Class 2 exemptions consist of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. The key in use of this exemption is that the replacement or reconstruction occurs at or very near the same site and negligible or no expansion of capacity.

Class 2 exemptions include projects such as the following, though this is not an exhaustive list:

• Repair or replacement of water service connections, meters, or valves;
• Replacement or reconstruction of existing water supply distribution lines of substantially the same size;
• Replacement or reconstruction of storage tanks and reservoirs of substantially the same size;
• Replacement or reconstruction of water wells of substantially the same capacity; and
• Replacement or reconstruction of pump stations and related appurtenances of substantially the same capacity.

New Construction or Conversion of Small Structures (CEQA Guidelines §15303)

Class 3 exemptions consist of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of small structures from one use to another where only minor modification are made in the exterior of the structure.

Examples of a new construction or conversion project include the following:

• Construction of new water supply or sewer service and distribution lines of less than sixteen inches in diameter and no greater than one mile in length, and related appurtenances;
• Construction of any water storage tanks and reservoirs of not greater than 100,000-gallon capacity;
• Construction of perimeter fencing around treatment plants and other buildings to deter unauthorized access if disturbed area does not exceed one acre; and
• Installation, operation, or permitting of hypochlorination units to inactivate bacterial contamination.

Minor Alterations of Land (CEQA Guidelines §15304)

Class 4 exemptions consist of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees. Class 4 exemptions are subject to the same exceptions as described above for the Class 3 exemption. Projects that commonly use Class 4 exemptions include:

• Minor alterations to land, water or vegetation on any officially existing designated wildlife management areas or fish production facilities for the purpose of reducing the environmental potential for nuisances or vector production;
• Any minor alterations to highway crossing for water supply or sewer service and distribution lines.
• Minor trenching and backfilling where the surface is restored; and
• Grading on land with a slope of less than 10 percent, except that grading is not exempt in a waterway, in any wetland, in an officially designated (by federal, state, or local government action) scenic area, or in an officially mapped areas of severe geologic hazard.

Information Collection (CEQA Guidelines §15306)

Class 6 exemptions consist of basic data collection, research, experimental management and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. These may be strictly for information gathering purposes, or as part of a study leading to an action which a public agency has not yet approved, adopted, or funded.

EXCEPTIONS

Class 3, 4, and 6 exemptions are subject to exceptions based on the location of the proposed project (CEQA Guidelines §15300, Exceptions). Projects located in a particularly sensitive environment may have a significant impact and would therefore not qualify for the use of an exemption. Class 3, 4, and 6 exemptions will apply in all instances, except where the project may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state or local agencies:

• Cumulative Impact – an exemption cannot be used when the cumulative impact of successive projects of the same type in the same place over time will produce significant effects on the environment;
• Significant Effect – a categorical exemption cannot be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. An example would be that the proposed new construction is proposed within a wetland;
• Scenic Highway – a project is not exempt if it may result in damage to scenic resources within a highway officially designated as a state scenic highway;
• Hazardous Waste Sites – a new construction project is not exempt if it is located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code; or
• Historical Resources – an exemption cannot be used for a new construction project that may cause substantial adverse change in the significance of a historical resource.
• Additional area sensitive locations or unusual circumstances that may make a project not exempt:
  • Special status species habitat
  • Critical Habitat for special-status species
  • Unique habitat (e.g., wildlife refuge, deer wintering range, etc.)
  • Important farmland
  • Wild and Scenic Rivers
  • Floodplains/Floodway
  • Area of unique recreational facilities
  • New or increased use of a critically depleted groundwater basin or groundwater basin subject to salinity intrusion
  • Important mineral resources
  • Production of significant amounts of solid wastes or litter
  • Involves substantial new or increased emission of dust, ash, smoke, fumes, odors, or other pollutants
  • Involves a substantial increase in noise or vibration levels beyond the property line
  • Projects located near sensitive receptors
  • Results in increased use or disposal of hazardous materials, flammables, or explosive
  • Project located in an area officially mapped geologic hazard area
  • Involves substantial change in the demand for municipal services
  • Involves traffic impacts in an area with traffic problems
  • Involves a substantial increase in fuel consumption (electricity, oil, natural gas)

When a project does not meet the requirements for an exemption, then a CEQA document must be prepared. These documents all begin with completion of an initial study to determine the potential environmental impact and to identify reasonable and feasible mitigation measures that may reduce impacts.

A Negative Declaration must be prepared for a project which will not have a significant effect. A Mitigated Negative Declaration shall be prepared if the Initial Study identified potentially significant effects, but revisions in the project or mitigation measures would avoid or reduce the effects to a point where no significant effects would occur (CEQA Guidelines, §15070).

The Negative Declaration is a document which consists of a brief project description, the location of the project, a description of mitigation measures (if any) included in the project to avoid potentially significant effects, an Initial Study, and a formal finding stating that the project will not have a significant adverse effect (CEQA Guidelines, §15071). If the Initial Study leads to the finding that a significant adverse effect may occur, then an EIR must be prepared.

INITIAL STUDY

The Initial Study facilitates: (1) identification of environmental impacts; (2) an assessment of environmental impact early in project design; (3) project modifications to avoid or mitigate adverse impacts; and (4) factual documentation for a finding, if appropriate, that the project will not have a significant adverse effect on the environment (CEQA Guidelines, §15063).

The CEQA Guidelines do not specify the precise format for an Initial Study. However, the Initial Study must contain the following specific elements in written form: (1) a description of the project, including its location; (2) the environmental setting; (3) environmental effects by use of a check list, (4) a commitment to mitigate adverse effects, if any, to insignificance; (5) an examination of whether the project is compatible with existing zoning and plans; and (6) the name of the person or persons who prepared or participated in the Initial Study (CEQA Guidelines, § 15063(d) and Appendix G).

Maps, photos, drawings, or explanatory material should be attached to provide a better understanding of the project. The Initial Study must be in sufficient detail to describe adequately the probable effect of the project on the affected area.

NEGATIVE DECLARATIONS OR MITIGATED NEGATIVE DECLARATION

Once the negative declaration is signed, the lead agency prepares 15 copies for transmittal to the State Clearinghouse (SCH) and additional copies for other local agencies and interested public. The SCH distributes the copies of the proposed Negative Declaration to provide an opportunity for federal, state, and local agencies, and members of the public to respond to the findings. The public review period is at least 30 days to provide interested parties with sufficient time to respond to the proposed finding before the Negative Declaration is approved (CEQA Guidelines, Sections 15072-15073).

Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration

The lead agency is responsible for providing public notice that a proposed Negative Declaration has been prepared and is out for public review (PRC, Section 21092). Contents of the notice are specified in CEQA Guidelines, § 15072(f). All organizations and individuals who have previously requested such notice shall be notified of the proposed Negative Declaration and notice shall also be given by at least one of the following procedures:

• Publication at least once in a newspaper of general circulation in the area affected by the proposed project
• Posting of the notice on and off-site in the area where the project is to be located.
• Direct mailing to owners of property contiguous to the project.

Any public or private parties who may be affected by the project should be notified. At the end of the 30-day public review period, prior to approving the project, the lead agency must consider the proposed Negative Declaration together with any comments received during the public review process and shall decide whether to adopt the Negative Declaration (CEQA Guidelines, §15074).

NOTICE OF DETERMINATION

After deciding to carry out or approve a project, the lead agency files a notice of Determination with State Clearinghouse (SCH). The filing of the Notice of Determination with SCH starts a 30-day statute of limitations on court challenges to approval under CEQA (CEQA Guidelines, § 15075). At the time of filing, the lead agency must have a copy of the Notice of Determination, the proposed Negative Declaration, and all comments with the agency’s responses, on file and available to the public.

ENVIRONMENTAL IMPACT REPORT

The decision to prepare an EIR should be made at the conclusion of the Initial Study. An EIR should be prepared if there is substantial evidence that the project may have a significant effect on the environment. The determination of whether a project may have a significant effect on the environment calls for careful judgment, based to the extent possible on scientific and factual data. In cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, an EIR should be prepared when there is serious public controversy concerning the environmental effect of a project (CEQA Guidelines, § 15064).

When any of the following conditions occur the lead agency shall find that a project may have a significant effect on the environment which will require a Mandatory Finding of Significance. Such a finding shall require an EIR to be prepared (CEQA Guidelines Section 15065):

• When a project has the potential to substantially 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 community, reduce the number or restrict the range of an endangered, rare or threatened species, or eliminate important examples of the major periods of California history or prehistory;
• When a project has possible environmental effects which are individually limited but cumulatively considerable;
• When the environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.

The general process for the preparation and adoption of an EIR is described in the CEQA Guidelines in Sections 15080 – 15112. The contents of an EIR are described in CEQA Guidelines Sections 15120 – 15132. EIR preparation consists of the following basic steps:

• Decision to prepare an EIR (CEQA Guidelines, Section 15065 and 15081).
• Early consultation (CEQA Guidelines, Section 15083).
• Send Notice of Preparation to the SCH with a distribution list (CEQA Guidelines, Section 15082).
• Prepare Draft EIR and send 15 copies with Notice of Completion to SCH for filing as stated in CEQA Guidelines, Section 15085. That starts the 45 day public review period (CEQA Guidelines, Section 15105).
• The lead agency must provide public notice of its intent to adopt a draft EIR prior to making that determination (PRC Section 21092, and CEQA Guidelines, Section 15087).
• Respond to comments received (CEQA Guidelines, Section 15088).
• Prepare and certify Final EIR (CEQA Guidelines, Section 15089_15090).
• Make decision to approve or disapprove the project (CEQA Guidelines, Section 15092).
• File Notice of Determination (CEQA Guidelines, Section 15094).

The contents of an EIR are specified beginning with Section 15120 of the CEQA Guidelines.

The lead agency submits 15 copies to the State Clearinghouse to provide an opportunity for federal, State, and local agencies, and members of the public to respond to the findings. The public review period is at least 45 days to provide interested parties with sufficient time to respond to the proposed finding before the EIR is approved.

The lead agency provides public notice of the intent to adopt a draft EIR per CEQA Guidelines, Section 15087. The minimum review period between release of the Draft EIR and final date for receipt of comments is 45 days, unless a shorter date is approved by the SCH (CEQA Guidelines, Section 15105 and 15111).

The Draft EIR is included as part of the review and approval process whenever a public hearing is held on the project. The lead agency evaluates the significance of comments received on the Draft EIR and responds in the Final EIR to those comments found to raise significant environmental issues.

The Final EIR is certified (CEQA Guidelines, Section 15092) and then the project can be approved.

Within 5 days of the decision on the project, the lead agency files a Notice of Determination and record of project decision (CEQA Guidelines, Section 15094) and when appropriate, a Statement of Overriding Considerations (CEQA Guidelines, Section 15093).

Cross-cutting federal authorities are the requirements of other federal laws and Executive Orders that apply in federal financial assistance programs. In the SRF programs, these include environmental laws such as the Endangered Species Act, the National Historic Preservation Act and executive orders on the protection of wetlands and flood plains, social policy authorities such as executive orders on equal employment opportunity in federally assisted programs, and economic authorities such as rules implementing executive orders on the debarment and suspension of persons who have engaged in misconduct. The State is responsible for ensuring compliance with federal laws as administrator of the EPA funds.

Cross-cutting federal authorities apply to projects and activities receiving assistance under the Clean Water State Revolving Fund (CWSRF) program authorized by Title VI of the Clean Water Act and the Drinking Water State Revolving Fund (DWSRF) program authorized by section 1452 of the Safe Drinking Water Act (together, the SRF programs). The basic rules for complying with cross-cutting federal authorities in the two programs are set-out in the CWSRF regulations at 40 C.F.R. § 35.3145 and in the DWSRF regulations at 40 C.F.R. § 35.3575.

• Regulatory and Guidance Information by Topic: Cross-Cutting Issues
• CEQA & Federal Cross-cutting Requirements
• Sample Federal Cross-cutting Evaluation Form

If a project requires CEQA compliance, the timeline can vary from one month to over a year. A Categorical Exemption (CE) can typically be completed in a month or less and do not usually require special studies. An initial Study/ Mitigated Negative Declaration (IS/ MND) typically requires field studies, many of which are seasonally dependent. An Environmental Impact Report (EIR) will require detailed special studies, which can take six months to over a year to complete and the document will typically take nine months to over eighteen months to complete including certification.

The State Clearinghouse​ distributes CEQA environmental documents and provides status information. The California Environmental Resource Evaluation System (CERES) provides the CEQA statutes and Guidelines, case law, and information on the CEQA process.

The National Environmental Policy Act (NEPA) does the same for projects that need approval by federal agencies. The Department of Water Resources has determined that projects financed through state bond funding that occur on or overlap federal or Tribal lands are required to complete a NEPA/CEQA hybrid document.

According to the Tribes who received IRWM funds and who completed hybrid CEQA/NEPA requirements, Tribal staff had to assist the outside contractor through each step of the process. Each project is different. According to one Tribal project proponent, they had to complete both NEPA and CEQA documentation because to reach the project site, one had to enter Tribal lands through a private landowner’s property. Therefore, the project was in both federal and state jurisdictions for the environmental assessment as well as permitting.

If seeking support for CEQA/NEPA hybrid documents, contact NCRP staff for a list of contractors familiar with the CEQA/NEPA Hybrid document process.

Should any project require construction within the ordinary high water mark of waters of the U.S. or within a jurisdictional wetland, a permit will be required pursuant to Section 404 of the Federal Clean Water Act, Section 10 of the Rivers and Harbors Act, and/or Section 9 or the Rivers and Harbors Act. The U.S. Army Corps of Engineers (Corps), San Francisco District, has jurisdiction over waters and wetlands of the U.S. and has the authority to issue permits for construction within these types of areas. The bounds of a water or wetland would be set by a “jurisdiction determination,” which is a wetland delineation submitted to, reviewed by, and approved by the Corps. Generally speaking, if any project activity stays outside the ordinary high water marks or any jurisdictional wetlands, a Corps permit would not be required. This determination can be made for each project as it completes the preliminary design process.

Depending on the type of activity and the total amount of ground disturbance caused by a project within the water or wetland, the project could be subject to an “individual permit” (generally 0.5 acre and over collectively) or could fall within the Nationwide Permit (NWP) program (generally less than 0.5 acre collectively). Individual permits are generally reserved for projects with potential for substantial environmental impacts. An individual permit requires a full public interest review, including public notices and coordination with involved agencies, interested parties and the general public. The purpose of the NWP program is to streamline the evaluation and approval process throughout the U.S. for certain types of activities that have only minimal impacts to the aquatic environment, and give those activities clearance under numbered permits. The Corps will generally not issue a permit until it has received a copy of the project’s Water Quality Certification issued by the applicable Regional Water Quality Control Board. Thus, the Corps NWP and the RWQCB permit are “linked” permits.

The figure below provides visual guidance for the Corps permit requirements based on the location of proposed activities.

The following listed activities, given in 33 CFR Parts 320 ‐ 330, normally require a Corps permit. Applicable authorities are shown in italics following each listed activity. Certain specific categories of activities may be exempted or permitted by nationwide permits or regional general permits.

• Dikes and/or dams in navigable waters of the United States (Section 9, Section 404).
• Structures and/or work in or affecting navigable waters of the United States (Section 10).
• The discharge of dredged or fill material into waters of the United States (Section 404).
• Structures or work outside the limits of navigable waters of the U. S., if these activities affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity (Section 10).
• A tunnel or other structure or work under or over a navigable water of the United States (Section 9 or 10).
• Structures for small boats including; piers, boat docks, moorings, platforms and similar structures in navigable waters of the United States (Section 10).
• Aids to navigation, including fixed and floating aids, in a navigable water of the United States (Section 10).
• A canal or other artificial waterway is subject to regulation if it constitutes a navigable water of the United States, or if it is connected to navigable waters of the United States in a manner which affects their course, location, condition, or capacity, or if at some point in its construction or operation it results in an effect on the course, location, condition, or capacity of navigable waters of the United States (Section 10).
• The connection to navigable waters of the United States (Section 10).
• Power transmission lines crossing navigable waters of the United States unless those lines are part of a water power project subject to the regulatory authorities of the Department of Energy under the Federal Power Act of 1920 (Section 10).
• Structures in navigable waters of the United States associated with seaplane operations (Section 10).
• Structures located within shipping safety fairways and anchorage areas established by the U. S. Coast Guard. The Department of the Army will grant no permits for the erection of structures in areas designated as fairways, except that district engineers may permit temporary anchors and attendant cables or chains for floating or semisubmersible drilling rigs to be placed within a fairway under certain conditions (Section 10).
• If any discharge of dredged or fill material resulting from the exempted activities listed in 33 CFR Part 323.4 paragraphs (a)(1)‐(6) contains any toxic pollutant listed under section 307 of the CWA such discharge shall be subject to any applicable toxic effluent standard or prohibition, and requires a Corps permit (Section 404).
• Any discharge of dredged or fill material into waters of the United States incidental to any of the exempted activities identified in 33 CFR Part 323.4 paragraphs (a)(1)‐(6) must have a Corps 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 cypress swamp to some other use or 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 nonwetland is a change in 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 (Section 404).

As part of the Corps’ permitting review process, the U.S. Fish and Wildlife Service would be consulted for Federally-listed special-status species issues and the State Historic Preservation Officer would be consulted for cultural resource issues, as described below.

If there are potential impacts to species or migratory fish listed under the federal Endangered Species Act, then the Corps would initiate consultation with USFWS or NMFS under Section 7 of the Act. Sensitive plant species would also be addressed in their relationship with the sensitive animal species through the USFWS consultation. Any potential requirements of the Migratory Bird Treaty Act would also be identified at this time.

Although Section 7 is a separate process, a biological analysis conducted for the CEQA document could be used as a basis for determining what species would be covered in a Biological Assessment (BA), which is a requirement for the Section 7 consultation process. The biological section of the CEQA document would list any special-status species – including those that are federally protected – as having potential habitat within the project area. The BA would be prepared to further evaluate the potential impacts to federally protected species and propose mitigation to reduce any potential impacts. The USFWS and/or NMFS , as well as the California Department of Fish and Game (discussed below), would review the BA and provide a written response in either a letter of no effect or, in the event a project would adversely affect special-status species, a Biological Opinion. A Biological Opinion would contain resource-specific mitigation and restoration requirements that would avoid take and adverse effects to the special-status species.

Consultation with the SHPO per Section 106 of the National Historic Preservation Act may be required, dependent on the findings of any cultural resource survey conducted for a project. Such findings that could trigger consultation include identification of a known cultural resource site or the project’s location. CEQA does not automatically trigger consultation with SHPO. The SHPO would be consulted if:

• Cultural resources are known to exist within a project construction zone (also called the Area of Potential Effect or APE);
• Funding for a project comes from a federal source (see discussion of the State Water Resources Control Board’s State Revolving Fund program below); or
• A NEPA document is required for a project.

The SHPO is also consulted by the Corps as part of the Section 404 permitting process. The purpose in defining an APE is to determine the area in which cultural resources must be identified, so that effects to any identified resources can, in turn, be assessed. Consultation with SHPO can require extensive coordination activities and can take up to a year.

As noted above, the Corps will ask SHPO to concur with its decision to issue its permit (either Individual or NWP). The cultural resources survey performed for a project would be included as part of the 404 application for this purpose. The Corps will review the survey report, make a determination, and then forward it on to the SHPO asking for SHPO’s concurrence with its decision. It should be noted that if no known or potentially eligible cultural resources are identified within the APE, the Corps might forego this consultation process.

If a project is in close proximity to an airport, consultation with the FAA may be necessary to review potential effects to the airport and its operations. Federal Aviation Administration Form 7460-1, Notice of Proposed Construction or Alteration, must be filed by the utility with the Manager of the Air Traffic Division in the Western Pacific Region Headquarters at least 30 days before construction would begin for any work within 10,000 feet of the airport and for an object that would exceed a 50:1 horizontal slope (50 feet horizontally for each 1 foot vertically) from the runway or on the airport property.

Construction of a project would require the preparation of a Storm Water Pollution Prevention Plan (SWPPP) in accordance with the National Pollutant Discharge Elimination System (NPDES) General Permit for construction activities (Construction Stormwater General Permit) if the area of disturbance is greater than one acre. A complete Notice of Intent (NOI) package must be filed with the SWRCB and a SWPPP must be developed in accordance with Section A of the Construction Stormwater General Permit prior to the commencement of soil disturbing activities. The SWPPP is not required to be submitted to the SWRCB; however, the SWRCB may request a copy. Historically, utility has required the Contractor to prepare the SWPPP as part of the construction contract.

The Construction Stormwater General Permit includes risk-based classification, numeric effluent limits, numeric action levels, post-construction flow requirements, sampling of runoff and of downstream receiving waters, and electronic filing of documents. Any construction activity that results in a land disturbance of equal to or greater than 1.0 acre is subject to the Construction Stormwater General Permit.

Under Section 401 of the Federal Clean Water Act, the State must certify that any activity subject to a permit issued by a federal agency, such as the Corps, meets all State water quality standards. In California, the State water quality standards are codified in the Porter-Cologne Water Quality Control Act. The SWRCB and the nine Regional Boards are responsible for taking certification actions for activities subject to any permit issued by the Corps pursuant to Section 404 or Section 10. The resulting approval is referred to as a Water Quality Certification.

If any type of discharge of waste into waters of the State is proposed as part of a project, the RWQCB also will need to issue Waste Discharge Requirements. Both of the terms “discharge of waste” and “waters of the State” are broadly defined in the Federal Clean Water Act to mean that discharges of waste include fill, any material resulting from human activity, or any other “discharge” that may directly or indirectly impact “waters of the State.” “Waters of the State” refers to “any surface water or groundwater, including saline waters, within the boundaries of the State (Water Code section 13050(e)).” This process can be done through the same application process as the Water Quality Certification.

To clarify, a Water Quality Certification is required when a Corps permit is required. Waste Discharge Requirements are needed in absence of a Water Quality Certification (of the Corps permit) and waters/wetlands of the State or other waters/wetlands that are not under Corps jurisdiction are affected.

Pursuant to Section 1600, et seq., of the California Fish and Wildlife Code, a Lake and Streambed Alteration Agreement would be required with the CDFW for work or disturbance occurring in the channel of, and within five feet of the top of, the bank of any streams in a project area. In addition, if there are affected special-status species, as listed under the California Endangered Species Act, a Section 2081 Management Authorization may be required. This would be determined by biological surveys  conducted for a project.

Notification by the project sponsor to the CDFW is required for any activity that proposes to deposit or dispose of debris, waste, or other material where it may pass into any river, stream, or lake. As CDFW’s jurisdiction under Section 1600 includes subsurface lands under streams, construction activities under such waterways may be subject to Streambed Alteration agreement. Typically, CDFW does not exert this jurisdiction in tidal waters. However, CDFW has done that in a limited number of cases.

Sections 2081(b) and (c) of the California Endangered Species Act allow the CDFW to issue an incidental take permit for a State listed threatened and endangered species only if specific criteria are met. “Take” is defined in Section 86 of CDFW code as “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” The attraction of seabirds to lights is an example of an incidental take. Each owner/operator of unshielded exterior light would be liable for the take of a listed species injured or killed as a result of light attraction. The same State-listed species identified in the Corps Section 404 process would apply for this authorization as well. The following criteria must be met for the take to become authorized through the permit:

• The take is incidental to an otherwise lawful activity;
• The impacts of the take are minimized and fully mitigated;
• The measures required to minimize and fully mitigate the impacts of the take: Are roughly proportional in extent to the impact of the taking on the species,maintain the applicant’s objectives to the greatest extent possible, and are capable of successful implementation;

• Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
• Issuance of the permit will not jeopardize the continued existence of a State-listed species.

The SLC serves the people of California by providing stewardship of the lands, waterways, and resources entrusted to its care through economic development, protection, preservation, and restoration. It has jurisdiction and management control over those public lands owned by the State. These lands generally include un-granted tidelands, submerged lands, and the beds of navigable streams, lakes, bays, straits, and other such water bodies. Its jurisdiction also extends to certain school lands. A lease from the SLC may be required if projects are located within SLC jurisdiction. A “lease” is defined as a “permit, right-of-way, easement, license, compensatory agreement, or other entitlement of use.” Those projects most likely to be within SLC jurisdiction are those involving water crossings of San Francisco Bay or its tidal sloughs. If projects are located within SLC jurisdiction, it is anticipated that a Right of Way General Lease would be required. The lease allows uses such as pipelines.

For projects occurring within Caltrans right-of-way, an encroachment permit(s) would be required to be submitted to the Caltrans district that has jurisdiction of the area where the project is located. Districts are determined by the map available here. Caltrans is responsible for the design, construction, maintenance, and operation of the California State Highway System, as well as that portion of the Interstate Highway System within the State’s boundaries. For example, potential areas of encroachment into Caltrans right-of-way could include those within the U.S. 101 right-of-way. In addition, the transport of heavy or oversized loads on State roadways during construction could also require a Transportation Permit.

If a project would include trenchless pipe installation and/or excavated pits (e.g., sending/receiving pits, pump vaults), the responsible party would be required to obtain tunnel classifications from the California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA), Mining and Tunneling unit for each qualifying tunneling or pit excavation. These classifications – also referred to as “Underground Classifications” – must be secured by the utilty before bid advertisement for all operations covered by Sections 8400 through 8469, “Tunnel Safety Orders,” of the California Code of Regulations. The intent of the tunnel classification is to inform the contractor of the potential hazards and safety precautions required. The Tunnel Safety Orders are applicable only when human entry will occur during a construction operation at any of the following locations:

• Tunnels – Culverts greater than 760 mm (30 inches) in diameter;
• Shafts – Excavations where the depth: (a) is at least twice the greatest cross-sectional dimension, and (b) exceeds 6.1 m (20 feet);
• Raises – Vertical or inclined underground excavation driven from bottom to top;
• Underground chambers and premises appurtenant thereto; and/or
• Boring and pipe-jacking operations 760 mm (30 inches) in diameter or greater.

Some of the common types of activities where human entry is likely and often require a tunnel classification include, but are not limited to:

• Pipe jacking or boring operations;
• Culvert rehabilitation;
• Pump house vaults;
• Cut-and-cover operations connecting to an existing underground installation; and
• Cofferdam excavations.

For projects involving air emissions, the utility will be required to obtain an Authority to Construct and, if appropriate, a Permit to Operate from the Cal EPA Air Resources Board. The California Air Districts map is available to determine which district you fall in. An Authority to Construct is a written authorization from the Air Pollution Control Officer (APCO) for any person who puts in place, builds erects, installs, modifies, modernizes, alters or replaces any article, machine, equipment or other contrivance, the use of which may cause, reduce, or control the emission of air contaminants. The Authority to Construct is for construction activities. A Permit to Operate is a written authorization from the APCO after the article, machine, equipment or other contrivance mentioned above is constructed and before it is operated or used. After construction, and prior to operation, record drawings for these facilities are required to be submitted to your local district.