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AUGUSTIN BERNAL MOUNTAIN BIKE TRAIL PROJECT DRAFT INITIAL STUDY 12956 DUDEK 39 April 2022 Clean Water Act The Clean Water Act is the primary federal law that protects the physical, chemical, and biological integrity of the nation’s waters, including lakes, rivers, wetlands, and coastal waters. Programs conducted under the Clean Water Act are directed at both point-source pollution (e.g., waste discharged from outfalls and filling of waters) and nonpoint-source pollution (e.g., runoff from parking lots). Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers regulates the discharge of dredged and/or fill material into “waters of the United States.” The term “wetlands” (a subset of waters) is defined as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas” (33 CFR 328.3[b]). In the absence of wetlands, the limits of U.S. Army Corps of Engineers jurisdiction in non-tidal waters, such as intermittent streams, extend to the “ordinary high water mark” (33 CFR 328.3[e]). State California Endangered Species Act Under the California Endangered Species Act (CESA), the California Fish and Game Commission has the responsibility of maintaining a list of threatened and endangered species. CESA prohibits the take of state- listed threatened or endangered animals and plants unless otherwise permitted pursuant to CESA. Take under CESA is defined as any of the following: “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill” (California Fish and Game Code Section 86). Unlike FESA, CESA does not include harassment or harm (e.g., habitat degradation) in its definition of take. Species determined by the State of California to be candidates for listing as threatened or endangered are treated as if listed as threatened or endangered and are, therefore, protected from take. Pursuant to CESA, a state agency reviewing a project within its jurisdiction must determine whether any state-listed endangered or threatened species, or candidate species, could be potentially impacted by that project. Clean Water Act Section 401 and the Porter-Cologne Water Quality Control Act Under Clean Water Act Section 401, states have the authority to certify federal permits for discharges to waters under state jurisdiction. States may review proposed federal permits (e.g., Section 404 permits) for compliance with state water quality standards. The permit cannot be issued if the state denies certification. In California, the State Water Resources Control Board and the Regional Water Quality Control Boards are responsible for the issuance of Section 401 certifications. The Porter-Cologne Water Quality Control Act is the primary state law concerning water quality. It authorizes the State Water Resources Control Board and Regional Water Quality Control Boards to prepare management plans, such as regional water quality plans, to address the quality of groundwater and surface water. The State Water Resources Control Board has authority over wetlands through Section 401 of the Clean Water Act, as well as the Porter–Cologne Act, California Code of Regulations Section 3831(k), and California Wetlands Conservation Policy. The Clean Water Act requires that an applicant for a Section 404 permit (to discharge dredge or fill material into waters of the United States) first obtain certification from the appropriate state agency stating that the fill is consistent with the state’s water quality standards and criteria. In California, the authority to either grant certification or waive the requirement for permits is