AgdaPkt 2010-02-01 clsd and regular

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7A - ATTACHMENT NO.2 Page 30 The Water Board has independent authority under the Water Code to regulate discharges of waste to wetlands (waters of the state) that would adversely affect the beneficial uses of those wetlands through waste discharge requirements or other orders. The Water Board may choose to exercise its independent authority under the Water Code in situations where there is a conflict between the state and the Corps, such as over a jurisdictional determination or in instances where the Corps may not have jurisdiction. In situations where there is a conflict between the state and the Corps, such as over a jurisdictional determination or in instances where the Corps may not have jurisdiction, the Water Board may choose to exercise its independent authority under the Water Code. The regulation of "isolated" waters determined not to be waters of the U.S. is one such instance where the Corps does not have jurisdiction. The U. S. Supreme Court, in its 2001 decision in Solid Waste Agency of Northern Cook County v. U. S. Army Corps of Engineers (the "SW ANCC decision") determined that certain isolated, non-navigable waters are not waters of the U.S., but are the province of the states to regulate. The Water Code provides the State and Regional Water Boards clear authority to regulate such isolated, non-navigable waters of the state, including wetlands. To address the impacts of the SW ANCC decision on the waters of the state, the State Water Board issued Order No. 2004-0004-DWQ in 2004, General WDRs for dredged or fill discharges to waters deemed by the Corps to be outside of federal jurisdiction. It is the intent of these General WDRs to regulate a subset of the discharges that have been determined not to fall within federal jurisdiction, particularly those projects involving impacts to small acreage or linear feet and those involving a small volume of dredged material. Order No. 2004-004-DWQ does not address all instances where the Water Board may need to exercise its independent authority under the Water Code. In such instances, dischargers and/or affected parties will be notified with 60 days of the Water Board's determination and be required to file a report of waste discharge. For proposed fill activities deemed to require mitigation, the Water Board will require the applicant to locate the mitigation project within the same section of the Region, wherever feasible. The Water Board will evaluate both the project and the proposed mitigation together to ensure that there will be no net loss of wetland acreage and no net loss of wetland functions. The Water Board may consider such sources as the Habitat Goals reports, the Estuary Project's Comprehensive Conservation and Management Plan, or other approved watershed management plans when determining appropriate "out-of-kind" mitigation. 30