401 Water Quality Certification South Carolina Department of Health and Environmental Control

Water Quality Standards and 401 Water Quality Certification evaluate proposed projects in waters of the state -including wetlands- to determine if they will contravene water quality standards (SC R.61-68) and/or eliminate classified or existing uses (SC R.61-69) evaluate proposed projects in waters of the state -including wetlands- to determine if they will contravene water quality standards (SC R.61-68) and/or eliminate classified or existing uses (SC R.61-69)

Section 401 of the Federal Clean Water Act requires that all Army Corps of Engineers 404 Permits obtain a 401 Water Quality Certification without which a 404 permit cannot be issued Section 401 of the Federal Clean Water Act requires that all Army Corps of Engineers 404 Permits obtain a 401 Water Quality Certification without which a 404 permit cannot be issued SC Regulation – Water Quality Certification SC Regulation – Water Quality Certification 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 States – the Corps of Engineers has determined that this includes mechanized land clearing the discharge of dredged or fill material into waters of the United States – the Corps of Engineers has determined that this includes mechanized land clearing Why? Why?

How are Wetlands/Waters Regulated? No specific State program No specific State program Dependent upon Federal program (must understand and interact directly with the Federal Program) Dependent upon Federal program (must understand and interact directly with the Federal Program) Two prerequisite state certifications or a Critical Area Permit Two prerequisite state certifications or a Critical Area Permit

Federal Program Section 404 of the Clean Water Act Administered by the Corps of Engineers Administered by the Corps of Engineers Oversight and guidelines by USEPA Oversight and guidelines by USEPA Input from US Fish and Wildlife Service, National Marine Fisheries Service, and State Historic Preservation Office Input from US Fish and Wildlife Service, National Marine Fisheries Service, and State Historic Preservation Office 401 and CZM certifications by DHEC 401 and CZM certifications by DHEC

What Does Section 404 Regulate? Only placement of fill or dredged material into waters of the United Stated Only placement of fill or dredged material into waters of the United Stated

Waters of the US Used for interstate or foreign commerce Used for interstate or foreign commerce Interstate waters including wetlands Interstate waters including wetlands Waters whose loss could affect interstate commerce Waters whose loss could affect interstate commerce Impoundments of waters Impoundments of waters Tributaries to waters Tributaries to waters Wetlands adjacent to waters Wetlands adjacent to waters

Isolated Wetlands SWANCC v. Corps Isolated waters and wetlands removed from Corps jurisdiction Isolated waters and wetlands removed from Corps jurisdiction Waters must show connectivity Waters must show connectivity

SCs Response to SWANCC DHEC issues Emergency Regulation DHEC issues Emergency Regulation Continues to review fill in isolated wetlands through other permitting programs Continues to review fill in isolated wetlands through other permitting programs SC Senate takes up wetlands legislation SC Senate takes up wetlands legislation

Federal Exemptions Agriculture and forestry Agriculture and forestry Maintenance & emergency reconstruction Maintenance & emergency reconstruction Farm or stock ponds & irrigation ditches Farm or stock ponds & irrigation ditches Drainage ditch maintenance Drainage ditch maintenance Temporary sediment basins Temporary sediment basins Farm, forest, and mining roads Farm, forest, and mining roads

Permits and Certifications Corps of Engineers Permit Corps of Engineers Permit Individual Individual Nationwide Nationwide Sec. 401 Water Quality Certification Sec. 401 Water Quality Certification Coastal Zone Consistency Certification Coastal Zone Consistency Certification Critical Area Permit (CAP) Critical Area Permit (CAP)

Wetlands Enforcement EPA for unauthorized discharges EPA for unauthorized discharges Corps for violations of permitted activities Corps for violations of permitted activities CZM conditions enforced by OCRM CZM conditions enforced by OCRM 401 certification conditions are enforced by the Corps as part of permit 401 certification conditions are enforced by the Corps as part of permit

SCs Wetlands Protection Tools SC Pollution Control Act SC Pollution Control Act Water Quality Standards Water Quality Standards Coastal Zone Programs Coastal Zone Programs Strong Federal presence Strong Federal presence Team approach Team approach Mitigation banking Mitigation banking

SC Pollution Control Act Waters of the state broadly defined Waters of the state broadly defined Upheld in State Circuit Court Upheld in State Circuit Court

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

DHECs Programs Bureau of Water Bureau of Water Section 401 – CWA Section 401 – CWA Section 402 – CWA (NPDES) Section 402 – CWA (NPDES) Navigable waters permits Navigable waters permits SC Pollution Control Act SC Pollution Control Act OCRM OCRM Alteration of critical area Alteration of critical area Coastal zone consistency Coastal zone consistency

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

No separate application to DHEC No separate application to DHEC Joint public notice process (15 days) Joint public notice process (15 days) Joint P/N serves as application to DHEC Joint P/N serves as application to DHEC Opportunity for a Public Hearing Opportunity for a Public Hearing Preparation of a Staff Assessment Preparation of a Staff Assessment Issue Notice of Proposed Decision Issue Notice of Proposed Decision Issue/Deny Final Certification Issue/Deny Final Certification 401 Certification Procedures

Staff Assessment of Water Quality Impacts (from SC R ) whether the proposed activity is water dependent and the intended purpose of the activity whether the proposed activity is water dependent and the intended purpose of the activity whether there are feasible alternatives to the proposed activity whether there are feasible alternatives to the proposed activity all potential water quality impacts of the project all potential water quality impacts of the project impact on existing and classified uses impact on existing and classified uses physical, chemical, and biological impacts physical, chemical, and biological impacts the effect on circulation patterns and water movement the effect on circulation patterns and water movement cumulative impacts cumulative impacts

Wetland Classifications and Standards wetlands are considered waters of the State wetlands are considered waters of the State no specific classifications or standards for wetlands no specific classifications or standards for wetlands classifications and standards are taken from the adjacent (tributary to) waters classifications and standards are taken from the adjacent (tributary to) waters where surface waters are not classified by name the use classification and numeric standards of the class of stream to which they are tributary shall apply (SC R ) where surface waters are not classified by name the use classification and numeric standards of the class of stream to which they are tributary shall apply (SC R )

Antidegradation applicants must demonstrate that proposed projects will maintain the water quality necessary to protect the existing uses applicants must demonstrate that proposed projects will maintain the water quality necessary to protect the existing uses Examples of antidegradation questions: Examples of antidegradation questions: Will the proposed project contribute to further degradation of 303(d) listed waterbodies? Will the proposed project contribute to further degradation of 303(d) listed waterbodies? Will the proposed project cause the closure of shellfish harvesting areas? Will the proposed project cause the closure of shellfish harvesting areas?

What is Mitigation? Avoidance Avoidance Minimization Minimization Compensation Compensation

Mitigation Types On site or off site On site or off site In kind or out of kind In kind or out of kind Creation Creation Preservation Preservation Restoration Enhancement

How Much Mitigation is Needed? Using the SOP Dominant effect of alteration Dominant effect of alteration Duration of effect Duration of effect Existing wetlands conditions Existing wetlands conditions Rarity ranking Rarity ranking Type of wetlands lost Type of wetlands lost Is the loss preventable Is the loss preventable

Mitigation Banking Makes good sense ecologically Makes good sense ecologically Mitigation completed prior to impact Mitigation completed prior to impact Increased chance of success Increased chance of success Long-term management Long-term management

here you will find a list of all the 401 Project Managers