HomeMy WebLinkAboutMINUTES - 06282011 - SD.14RECOMMENDATION(S):
CONSIDER a request of the Delta Counties Coalition (DCC) from Solano County to urge
our congressional delegation to cosponsor Representative Gary Miller's bill, the Flood
Control Facility Maintenance Clarification Act, to provide a narrow exemption for
maintenance removal of sediment, debris, and vegetation from flood control channels and
basins, to streamline the Clean Water Act’s (CWA) Section 404 permitting process.
FISCAL IMPACT:
There is no fiscal impact to the County by making this request to our congressional
delegation for cosponsorship. However, there may be cost savings to this and other counties
from a more streamlined permitting process, if the bill is enacted.
BACKGROUND:
On the June 17, 2011 Delta Counties Coalition (DCC) conference call, Solano County
raised the issue of the DCC sending a letter to the DCC delegation in support of legislation
being introduced by Congressman Gary Miller (R-Orange County) exempting from the
Clean Water Act’s Sec. 404 permitting process, projects to remove legislation from within
levees. (Note--This is NOT the levee vegetation issue on which the County has been quite
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 06/28/2011 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lara DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: June 28, 2011
David Twa, County Administrator and Clerk of the Board of Supervisors
By: , Deputy
cc:
SD. 14
To:Board of Supervisors
From:David Twa, County Administrator
Date:June 28, 2011
Contra
Costa
County
Subject:Flood Control Facility Maintenance Clarification Act – Cosponsor Request
active related to removing vegetation that is growing ON levees).
The DCC representatives are currently reviewing a draft letter of request for our
congressional delegation. Contra Costa County's federal lobbyist is making inquiries about
the receptivity of this request and will report back shortly.
The California State Association of Counties (CSAC) supports Congressman Miller's draft
legislation and has invited the California Congressional delegation to join Representative
Gary Miller as an original cosponsor of his bill to streamline the Clean Water Act’s (CWA)
Section 404 permitting process. Specifically, the bill – the Flood Control Facility
Maintenance Clarification Act – would provide a narrow exemption for maintenance
removal of sediment, debris, and vegetation from flood control channels and basins,
effectively clarifying the original intent of Congress.
Under Section 404 of the CWA, counties, local flood control agencies, and similar local
government agencies in California and across the country are required to obtain permits
from the U.S. Army Corps of Engineers (USACE) to perform maintenance activities in
flood protection facilities. The law also provides an exemption for “maintenance of
currently serviceable structures.” However, the USACE has interpreted that this exemption
does NOT apply to certain routine maintenance activities.
This narrow interpretation has caused a number of unintended consequences. For one, it has
drastically increased the Corps’ workload, creating a significant backlog. The processing
time for a 404 permit takes anywhere from one to three years, and often comes with costly
mitigation conditions attached. It also has hampered local agencies in their efforts to
perform routine maintenance in a timely and responsive manner, leaving them open to
undue liability for flood damage.
Predictable, timely, and cost-effective maintenance of flood protection infrastructure is
critical to sustaining the safety and economic viability of the nation’s communities. A
cumbersome permitting process delays critically important maintenance activities, putting
the nation’s flood protection infrastructure, and the communities it protects, at unnecessary
risk. Clarifying the CWA to provide an exemption for maintenance removal of sediment,
debris, and vegetation from flood control channels and basins would allow local agencies to
provide for public safety without compromising environmental protection.
BACKGROUND: (CONT'D)
Examples of Section 404 Permit Processing Delays in CA
Orange County
It took Orange County three years to obtain a Section 404 permit to clear riparian growth
from a channel bottom, which was reducing the flood protection capacity of the channel.
As a condition of receiving the permit, the County was required to provide 43 acres of
mitigation at a cost of $2.8 million, as compared to the cost of the riparian removal,
which was $700,000.
Alameda County
The Alameda County Flood Control District’s 404 permit application for the removal of
sediment from flood control channel Line N/N-1 in District Zone 6 was still not approved
after six years pending resolution of a mitigation demand for temporal project impacts.
Butte County
A typical 404 permit process in Butte County takes over one year. For example, the
Lower Wyandotte/Monte Vista Avenue proposal took 13 months to be processed and was
subject to a $9,450 mitigation requirement for .063 acres of seasonal emergent wetlands.
San Bernardino County
It took the San Bernardino County Flood Control District approximately two-and-a-half
years to obtain a 404 permit to structurally stabilize an existing soft levee, as identified
by the US Army Corps of Engineers in its Flood Plain Manual, to provide adequate flood
protection to adjacent properties. As a condition of the permit, the District was required to
provide over four acres of on-site revegetation and almost nine acres of off-site
vegetation enhancement at a cost of approximately $55,000.
CONSEQUENCE OF NEGATIVE ACTION:
If Contra Costa County chooses not to sign-on to the request letter, the other Delta
County Coalition partners are not enjoined from submitting a letter on their own.
CHILDREN'S IMPACT STATEMENT:
None.
CLERK'S ADDENDUM
The Board DIRECTED that the letter from the Delta Counties Coalition to our
congressional delegation not be sent out until a response from Congressman George
Miller’s office had been received on their receptivity to the request, and that staff report
back to the Board on the outcome of the matter as a Consent item at a future Board
agenda.
ATTACHMENTS
Draft Cosponsor Request Letter
Flood Control Facility Maintenance Clarification Act
Affected Code Section
June XX, 2011 DRAFT
The Honorable ……
……House Office Building
Washington, DC 20515
Re: Flood Control Facility Maintenance Clarification Act – Cosponsor Request
Dear Representative ……:
The Sacramento‐San Joaquin Delta Counties of Solano, Sacramento, San Joaquin, Contra Costa,
and Yolo urge you to join Representative Gary Miller as an original cosponsor of his bill to
streamline the Clean Water Act’s (CWA) Section 404 permitting process. Specifically, the
legislation – the Flood Control Facility Maintenance Clarification Act – would provide a narrow
exemption for maintenance removal of sediment, debris, and vegetation from flood control
channels and basins, effectively clarifying the original intent of Congress.
Under Section 404 of the CWA, counties, local flood control agencies, and similar local
government agencies are required to obtain permits from the U.S. Army Corps of Engineers
(USACE) for the discharge of dredged or fill material into navigable waters. The law also
provides a permitting exemption for the maintenance of currently serviceable structures.
However, the USACE has determined that this exemption does not apply to certain routine
maintenance activities.
This narrow interpretation of the law has caused a number of unintended con sequences. For
one, it has drastically increased the Corps’ workload, creating a significant permitting backlog;
the processing time for a 404 permit can take from one to three years, and often comes with
costly mitigation conditions attached. It also has hampered local agencies in their efforts to
perform routine maintenance in a timely and responsive manner, leaving them open to undue
liability for flood damage.
Timely and cost-effective maintenance of flood protection infrastructure is critical to sustaining
the safety and economic viability of the Delta. Clarifying the CWA to provide an exemption for
maintenance removal of sediment, debris, and vegetation from flood control channels and
basins would allow local agencies to provide for public safety without compromising
environmental protection.
The DCC appreciates your continued support and steadfast commitment to the Delta and its
residents and we look forward to continuing to work with you.
Sincerely,
.....................................................................
(Original Signature of Member)
112TH CONGRESS
1ST SESSION H. R. ll
To amend the Federal Water Pollution Control Act to clarify a maintenance
exemption regarding the removal of sediment, debris, and vegetation
from certain structures.
IN THE HOUSE OF REPRESENTATIVES
Mr. GARY G. MILLER of California introduced the following bill; which was
referred to the Committee on llllllllllllll
A BILL
To amend the Federal Water Pollution Control Act to clarify
a maintenance exemption regarding the removal of sedi-
ment, debris, and vegetation from certain structures.
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the ‘‘Flood Control Facility 4
Maintenance Clarification Act’’. 5
SEC. 2. PERMITS FOR DREDGED OR FILL MATERIAL. 6
Section 404(f) of the Federal Water Pollution Con-7
trol Act (42 U.S.C. 1344(f)) is amended—8
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(1) in paragraph (1)(B) by inserting ‘‘channels, 1
basins,’’ after ‘‘such as’’; and 2
(2) by adding at the end the following: 3
‘‘(3) For the purposes of paragraph (1)(B), the 4
term ‘maintenance’ includes the removal of sedi-5
ment, debris, and vegetation from structures de-6
scribed in that paragraph.’’.7
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§ 1344. Permits for dredged or fill material
(f) Non-prohibited discharge of dredged or fill material
(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill
material—
(A) from normal farming, silviculture, and ranching activities such as plowing, seeding,
cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or
upland soil and water conservation practices;
(B) for the purpose of maintenance, including emergency reconstruction of recently damaged
parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap,
breakwaters, causeways, and bridge abutments or approaches, and transportation structu res;
(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches,
or the maintenance of drainage ditches;
(D) for the purpose of construction of temporary sedimentation basins on a construction site
which does not include placement of fill material into the navigable waters;
(E) for the purpose of construction or maintenance of farm roads or forest roads, or temporary
roads for moving mining equipment, where such roads are constructed and maintained, in
accordance with best management practices, to assure that flow and circulation patterns and
chemical and biological characteristics of the navigable waters are not impaired, that the reach
of the navigable waters is not reduced, and that any adverse effect on the aquatic environment
will be otherwise minimized;
(F) resulting from any activity with respect to which a State has an approved program under
section 1288 (b)(4) of this title which meets the requirements of subparagraphs (B) and (C) of
such section,
is not prohibited by or otherwise subject to regulation under this section or section 1311 (a) or
1342 of this title (except for effluent standards or prohibitions under section 1317 of this title).
(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity
having as its purpose bringing an area of the navigable waters into a use to which it was not
previously subject, where the flow or circulation of navigable waters may be impaired or the
reach of such waters be reduced, shall be required to have a permit under this section.
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