/San Francisco Bay Conservation and Development Commission staff report. San Francisco Bay Conservation and Development Commission. California.Resources Agency. [San Francisco:San Francisco Bay Conservation and Development Commission ; the Resources Agency of California,1976] Dredging Law and legislation California. Dredging Law and legislation California San Francisco Bay Area. ..Coastal Zone Information :.C,ehter AUG 2 11978 TBE REGULATION OF CODASTAL MME DREDGING INFOR"'WROM OUR January 1 1976 State of:California ervation and Development Commi San Francisco Bay Cons ssion ':)0 Van Ness Avenue San Francisco, California 94102 KFC 792 X2 R44 1976 12225 COASTAL ZONE' TEE 'Summary of the report, "The Regulation of Dredging,".by the San FranciscoBay REGULATION ConservationandDevelopment Commission staff. OF DREDGING This isa -summary of a report prepared by the "San Francisco Bay Conservation and Development .Commission pursuant to an interagency agreement with the Resources Agency. The authoriza- for the study is provided for-,: tion and,funding by Senate Bill. 24i8.(Marks) of,the 1973-1974 legislative session. U.S. DEPARTMENT OF COMMERCE NOAA COASTAL SERVICES CENTER 2234 SOUTH HOBSON AVENUE CHARLESTON, SC 29405-2413 San Francisco Bay 'Conservation and Development commission San Francisco California January 1, 1976 california san francisco bay conservation and development commission kfc 792, c2 r44 1976 11793987 Of CBC dec 23 1996 N In recent years, as interest in environmental issues INTRODUCTIO and resource management has become more prominent@ both the Federal and State Governments have. increased their participation in the regulation of dredging.@ Under State Senate Bill 2418, the State Resources stablish temporary proc'edures Agency was required to e for an experimental "one-step" coordination system intended to speed the processing,of permit applications. for specified dredging projects within the jurisdiction of the San Francisco Bay Conservation and Development Commission (BCDC) and also report to'the Legislature on,the problems in the regulatory process, make recom- mendations concerning those problems, and advise the Legislature as.to their possible statewide apnlica- tion.- Figure I shows the jurisdictional boundaries of.agencies that regulate dredging in the Bay.,Area. FINDnL GS, This report su'Dersedes an earlier study, "The. Regulation of Dredging,. Part I,.'.? prepared under. the same Authorization, that dealt -with the legal.' basis fordredging regulation,,.the procedures of the various@agencies regulating dredging in San Francisco Bay,. and the. formal.6nd informal re.la- tions among these agencies.. Based on those analyses, the earlier report also contained fourteen-findings about the-regulatory process. These findings were adopted by the Commission on August 21, 1975, following 4.public,hearing. Because these findings are the basis for the recommendations made in the-pre-sent. report it is appropriate to list them,here: 1,. There,is no@comprehensive coordination of the permit application process. 2. Without coordination agenc ies are requi redi to,6omment several times on projectapplica- tions., 3. The complexity of the existing.regulatory framework necessitates a,high level of .@applicant expertise to expedite permit processing.... 4. Dredging is generally considered.as an isolated activity in the. regulatory process rather than: 2age I as an integral part of a larger development. 'i E S. F. COE Sacto. C District District > F & G Region I I z%' & G Region J, -IJ A RWQCB Region 2 T, 06 5- .'@@-RW B ',N N .4 A !@77;11 0 10 % -A\ SCALE IN MILES JURISDICTIONAL . . .......... BOUNDARIES OF AGENCIES IN THE -01 BAY AREA -x7 A 7- Corps of Engineers Fish and Game ....... RWQCB 7 NATIONAL WILDLIFE REFUGE (Department of Interior) AGENCIES WITH STATEWIDE JURISDICTION BCDC jurisdiction and area of STATE 'FEDERAL dredging permit coordination The Resources Agency U.S. Fish and Wildlife Service generally lie within a line 100 ft. state Land$-Com Imission fDept. of interior) oreline and in- L inland'of Bay sh National Marine Fisheries Service cluding those areas shaded grey. State Water'Resources Control Board (Dept. of Commerce) Envigro-nmental Protection Agency Figure 1 5. Although all agencies claim to protect the "public. interest.." it is unclear. what is meant by this term and vhether or not it is, in fact,being protected. 6. Most agencies formal policies are.so general as to necessitate case-by-case A decision-making even on non-controversvial projects. 7. An objection to a given project by a single-purpose agency can act as a veto over the application,.. 8. Although,a regulatory agencies 11 es have procedures for soliciting comments on projects, these procedures are not coordinated among the agencies and are rarely used. 9. Stateagencies derive a great deal of, their authority from Federal gency procedures. 10. Thereis a considerable amount of substantive jurisdictional overlap among agencies at all levels of government. 11. Agencie,regulate many,activities besides dredgi ing. Agencies that regulaite dredging may lack appropriate geographical juris- diction. 13. Althoughmost,agencibs havesome 1imited alternatives in their processing proce- dures, as a general rule projects of all, sizes and applicants of all types must Seek their approvaisin basically the- same, manner. 14 The laws and regulations which surround the dredging process are.currentlyin a very dynamic state.. Page 3 NEW In addition, the following additional findings FINDINGS were identified while preparing the final.. report,- 15.. Dredging is regulated in all areas of the State under basically the same laws,, although the agencies involved., the standards applied, andthe procedures used vary according to regional factors. Primary examples of state- wide-agencies are the nine Begional water Quality Control Boardsand the-three U. S. Army Corps of Engineers -Districts.,.. 16. The Department of Fish and Game and. the California Coastal Zone Conservation Commission conduct major' permit, programs which regulate dredging outside of the Bay Area.' 17. The State Board of Reclamation conducts. a permit 'Program regulating dredging within. the f1ood' plai n of the San Joaquin Sacramento river systems. 18. The California Tahoe Regional Planning Agencyand the Tahoe Regional Planning Agency-both regulate dredging in Lake Tahoe. 19. Regulations recently published by the U. S. Army CO'rps,of Engineers-enlarg the Corps' geographical jurisdiction and provide for adminisitrative practices. which can expedite the processing of appli- cations. Because the number of applications may increasb. the workload of agencies that comment on Public Notices or issue certifica- tions of conformance may also increase.. A formal-, coordination systemfor dredging permit applications-is not likely to pro- duce benefits to, justify. its,: continuance beyond the expiration of this study's funding period. page 4 regulatory goals of the agencies PROBLEMS In general, the AND involved in dredgingare being met, although- cer- ANALYSIS tain problems exist with the regulatory mechanisms. The study divides these problems into three groups: (1) duplicated activities; (2) ambiguous require- ments; and (3) -what appears to be unnecessarily repetitive or detailed regulation. "Duplicated activities" encompass all reviews or procedures that arerepeated at least once during the processing-of the same application. This duplication is the result. of the number of regu- latory agencies involved either directly or indirectly.in either a permitting or commenting capacity. A summary of agencies involved in regulating dredging is given in Table I. Dredg- ing is regulated by parallel review structures involving State agencies on one level and Federal agencies on another. A request to dredge in San Francisco Bay usually requires dealing with between seven and nine agencies. No recommendation is made to change the existing number or substantive juris- diction of any of them, but certain procedural con- solidations, discussed below, can be undertaken. For every review undertaken by a State agency, there is often a comparable review of the same subject by a Federal agency, and vice versa. Some duplication of review may exist even within the same governmental level. Land use reviews are done by the State Lands Commission, the U. S. Army Corps of Engineers, and by either BCDC or the California Coastal Zone Con- servation Commission. Fish and wildlife reviews are undertaken by three agencies--the United States Fish and Wildlife Service, the national Marine Fisheries Service, and the Department of Fish and Game. (Only among the agencies responsible for water quality is there little duplication of review.) Overall duplication of review could be reduced if Federal and State agencies were to develop mutally acceptable regulatory policies and cooperative processing agreements. a The procedural steps in the permitting process itself are also a source of duplicated activity. Often more than one agency undertakes the same procedural step, resulting in unnecessary and prolonged work for both agencies and applicants. Page 5 TAWZ I SUIOWY--AGErrIE3 PMULATItr, rREI)rTW, Principal Area cr of Coa--enting Geographic Lcgislative Agen Concern Aat!,.,i ri ty Ju_-i.,,dIi,-i:,n Ailt.hori =a I ion Local city, County, Special Charter or Legislative District Land Use P-roxit/Co=ent 'Local Grant of Authority., State San Francisco Bev Can- McAteer-Petri$ Act, servation & Develcpnent Land Use Permit. Cal. Gov. C. Sec. commission Woo, et seq. California Coastal Zone California Coastal Zone C aservation Co-is_ land Use Permit Coastal Zcze Conservation A_@t, Cal. 0 ion Pub. Res. C. Sacs. 27000-27302. Regio=al ',;star Qualizy Porter-Cologne Act, Cal. Control Board Water Quality Permit Regi,06sl Wet. C. Sec. 13000, at seq. FWPCA Sees. 401, 404, 33 U.S.C. 1251. State.Weter Resources Porter-Cologne Act, Cal. Control Board Water quality Per=it--@ Statewide Wet. C. See. 13000, at Beq. FWPCA Sacs.. 401 404, 33 U.S.C. L251. -State Lands Co-ission Land Use/Royalties Permit, Statewide Cal. Pub. Res. C. Sec. 6331. Lepa@t_-Mt of Fish and Fish and WJI ldlif- Cal. Fish and Game C. Game Resources Per=it/Co=ment Statewide -sees. 1600 through 1603, 5650(f), 51653. Fish a-,d Wildlife Coord.,Act, 16 u.s.c. 661. Reclamacion Board Flood Contiol/Land,' Permit Regional Cal. Wsz. C. See. 8710. Use California Tahoe Cal. Gov, C. See. Fegiq@al Plarning Land Use Permit Regional 67000, et seq. Agency Tahoe-1egiinal Plan- P.L. 91-1117, 83 Stats. Ding Age--cy Land U3e Permit., Regiotjkl V6 (1969) Cal. Gov. C. Sec. 66800, at seq., Rev. Re'l. Stats. Sees. b 227.1-90, at seq. Resources Agency Resource Management Comment Statewide CEQA, Cal. Pub. Res. C. Sees. 21000, at seq. Senate Bill 2418 (1974), Cal. Far, Nxt. C. Seca. 16o through 170. Pederal V. S. Army Corps of Navigation, Water Rivers and Her. Act. See. Inginet'rs- Quality, Land Use, '.Permit Regional 10. 33, u.s.c. 409. Fish Fishand Wildlife and Wildlife Coord. Act, 16 U.S.Ci 661. @ F-dKA Sec-404. 33 U.S.C. L251, at aeq. Vnited Z"ates Fishand Ttsb and Wildlife Coord. Wildlife _'einice Fish and Wildlife C., at Statewide Act, 16 U.S.C. 661. National Vartne Marine. gotuirinq and fisheries Zer-rico Anddrocx-Ais F13h Coament Statewide @Iroae. trivironmentat Protec- IrPAI 42 U.S.C. 4231, tion Agency Water Quality Coment Statevt& at seq. rWTICA Seca. Wi, 4o4, 33 U.S.C. 1251, et seq. Pa-6-e 6 For example, while a dredging application is being:processed'there may be as many as four independent solicitations for comments on it, coming from the U. S. Army Corps of, Engineers via their Public Notice, the BCDC or the Clifornia Coastal Zone Conservation Commission, the State Lands Commission, and the Regional Boards. Ambiguous requirements constitute the second, broad group of problems in the regulatory pro- cess. Applicants often have difficulty in anticipating the requirements that will be im-oosed on their dredging projects. Although each agency's general concerns and requirements. are clear,,applicants may be unable to easily determine whether or not sediment samples will. -per (which be required, whether a State Lands mit frequently takes a considerable amount of time obtain) will be necessary, whether an application 8willbe processed administratively (substantially reducing the time requirements for notice and hear- ing), or whether any environmental documents must be Prepared, These uncertainties cause delay and additional workloads. t of dredging applicants is The principal complain the length of time it takes to obtain the necessary approvals. As theregulatory process now stands., analicant cannot estimate, within an accuracy of two or three months, how long the processing of an application will take. This hinders appli- cants from soliciting contract bids or scheduling construction. Although most of the permit-grantin8& agencies involved in the regulation ofreaging have statutory limits on theime toy can take to consider An applicat'on, most of the time-limits areilllusory because no,sanctions are imposed to compel agency performance. Commenting agencies have virtually no time limits. For example, State agencies,that want to content on dredging projects,may delay their comment submission until the closeof the Corps Public Notice period. Some of the agencies have indicated that substantial workloads coupled with understaffing have made them unable to comply with response time reuests. Page 7 State and Federal agencies need up-to-date guidelines for the'substantive reviews they are obligated by law to undertake. In many cases, the sole agency guidance is found in the organic law that established the agency. The absence1pformal policy-guidance has two applicants effects. First, a have difficulty determining what is expected of the,ii in terms of project requirements. Applicants whio have been through the process more than once may is or is not have some general notions of what acceptable. But certain agencies have indicated that a change in personnel may result in a change in ir@formal uolircies often the only policies that the agencies have so the exoerierinced applicant has no necessary advantage. This void in clear polic y guidance creates a situation that is difficult for the applicant time-consuming for agencies. Second, the lack of guidance on policiesmakes agency review difficult Decisions are based on thout any direction that a case-base review, wi ensqures a consistent approach. The third group of problems concerns janneces sarily repetitive or detailed regultion. Approximately half of the applicationsconsidered bythe BCDC since 1970 have been for the dredging of less than 1,000 cubic yards, considered a small project in eay A roje ts rmay have relatively 128 B rea. These p little significant envirorimental land use impact, yet require full review, one application submitted to BCDG during the dredging coordination experiment. involved,the'dredging of less than 200 cubic yards of material which would be loaded onto trucks and taken away for dry land disposal.The applicant had to be told that even if all agencies used every procedural shortcut at their disposal the regulatory process mould st.i.1-equi re review by at least nine agencies, take at least bn6month, and cost at least a few hiindred dollars in application fees. Most agencies submit every project proposed to exactly the same review, which means that applicants face the 2 same steps in each agency regardless of the signifi- cance,of their project. The majority of dredging reviews are for mail interiance projects, on which basic lend use dispsal, ownership, and navigational,and Page 8 eivirnmental uesitions have been addressed. It seems inappropriate to review a maintenance project to the same degree.as a new project., T@E The experiment in centralized processing of. COORDINATION permit applications for specified dredging EXPERV)CNT projects within the jurisdiction of BCDC vias EVALUATION not an effort.toestablish a permanent regula- tory overhaul, but rather to try out a numberof ideas.to decide if permanent.reform of some type was in order. The experiment was designed to aid bo@lh applicants@and agencies by providing a central ice (BCDC) to which all inquiries,, -documents, and o f f J_ decisions could be directed-and establishing a single application form acceptable to,all Federal and State a r> Projects coordinated werelimited to new aencies. dredging of 100,000 cubic yards 'or less within a twelve-month period and any maintenance dredging. On receipt of an@application, the Permit Coordinator first determines if it is complete. Completed appli- cations are sent to the,permitting and commenting agencies for revievand notice of all.decisions, status reports, or,coments are'returned to the Coordinator. There are time limits on these responses, but adherence to them has been erratic. Agencies have differed over. whether or not the. initial screening.of applications.has speeded up -ed rather the process. Experienced applicants react negatively because preliminary agency contacts were still required end all the information previously required -was-still asked for. However, inexperi- enced applicants found that a great deal of,time and-effort was saved because they were ablelto determine.in advance with which agencies pre- 1'iminary contact is necessary, what types of information are required, and how applications are to be filled out. Agencies,have said that @the screening of-applications for completeness is an effective Service. Nevertheless, the experiment does not bear out the belief that a formal coordination system is the answer to time delays. The major delays in the processing of permits.result from both the internal operating procedures of the agencies and the clutterm. Page 9 ing of the process.with projects that should not be extensively reviewed. Certain aspects of coordination should probably b retaindsuch as the single application form and the informa tion service for applicantsbut continuance of temporary coordination on a permanent basis is notjustified. The proper approach "or coordinated processing should involve statewide and regional agencies. At the statewide level, the Resources Agency should be designated toversee the opera tions of designated regional a gencics. An existing regional agency should be designated as the "principal agency" in its area. Where such exist, agencies I approved under the Federal Coastal Zone Management Act should be given prime considerations because these agencies can compel Federal compliance with plan and permit decisions. These two groups riplementing this studys would be responsibility for ,recommendations and overseeing the processing of dredging applications. imposing these functions, of existing agencies should require minimal, if any, additional personnel onceinitial procedural mechanisms are, establshed. REC0MMENDATION The recommendations for improving the regulatory IMPLEMTATION process arepased on the blief that the government must continue to regulate dredging in a comprehen sive andcautious manner in order to protect vital resources androvide ahealthy environment. The government has a related responsibility to respond to dredging applicants in a timely, consistent, and reasonable manner. These recommendations, listed below and summarized in Table IT, can be applied statewide (with regional variations for specific criteria) Mid, for the most part, can be enacted administratively. I. Each agency regulatingdredging should adopt regulations into the California Administrative Code,to formalize the procedures used in the processing of applications or comments on. applications. Theseregulations should including all administrative, policies capable of being made into general rules other than those. specifically designated for discretionary" determination. Each of these agencies should also formally Page, 10 adopt substantsive policies and standards to TABLE II SUMMARY OF RECOMMEIMATIONS Recommendation Implementation Body 1. Adopt Administrative Reaulations to guide procedures Agencies II. Adopt policies to guide decision- making Agencies III. Impose time limits to compel timely processing A. permitting Agencies Resources Agency and Agencies Regional Water uality Control Boards Legislature C. Commenting.Agencies Resources Agency and Agenciez IV. Clarify CEQA G0uidelines.regarding maintelaance and small new dredging Resources Agency V. Authorize long-term approvals for maintenance dredging Agencies V1. Interagency Relations A. Designatue "Supervising Agency Governor 1. Designate principle agenies Supervising Agency 2. Provide state wide guidance Supervising Agency 3. Annual progress report to Governor, and Legislature Supervising Agency B. "Principle Agency" 1. Piovide.information Principle Agency 2. Prefiling discussions Principle Agency 3. Receive-applicati0dris Principle Agency 4. Issue joint pu1blic notice Principle Agency and Corps 5. Hold joint hearings Agencies and Corps 6. prepare standard appli- cation forms Agencies and Corps 7. Define terms Agencies 8. Coordinate appropriate applications. Principle, Agency mi Principle Agency, 9. Enforce time li 10. State position on permits Governor 8M Declaration of State policy Governor and Legislature 4VI2I6I.: Review budgetand staff requirements A Staff changes Resources Agency and Agencies B. General fund support for Fish and Game Resources Agency and Legislature IX. Alter notice requirements for State Water Resources Co0ntrol.Board waste-discharge requirements and Regional Water quality Control Board 28. Oversight hearings Legislature 281. Federal Agency Action Governor and Legislature Page 11 establish the criteria for decision-making. In particular, key phrases such as "signifi- cant water quality effects," "significant concentrations," etc., should be defined. Resources policies of statewide importance should be developed in conjunction with the State Resources Agency. III. Time limits should be imposed that require agencies to process applications and requests for comments within a reasonable period of time. BCDC has a time limit that compels automatic issuance of permits if time limits are not complied with, and the same type of limits are recommended for all permitting and commenting agencies. Extensions of time limits should be available only when agreed to by the applicant. IV. Although, environmental documents are usually not a significant problem in dredging projects because they are not frequently required, clari- fication of some aspects of the California Environmental Quality Act Guidelines concern- ing dredging would eliminate some uncertainties. For example, the Resources Agency is currently revising the Guidelines and should specify all new dredging of 10,000 cubic yards or less within a twelve-month period and all mainten ance dredging as an example of an existing class of categorical exemption. VI. All aspects of angency's concerns, including anticipated maintenance dredging, should be considered in the initial evaluation of a project and permits should be granted for extended time periods. VI. As noted earlier, the coordination experiment suggests that full formal coordination of dredg- ing applications is not advisable, but that some form of cooperative effort is necessary. It is recommended that the responsibilities for ensur- ing these cooperative efforts be carried out within the framework of existing State agencies. Page 12 VII..-. It is recommended that the Legislature and Governor acknowledge as State policy that all State agencies are to process dredging permit applications and comment, requests'as expeditiously as possible without jeopardizing natural resources or environmental controls; that all State agencies are to abide by estab- lished time limits; that the time limits are to be considered maximum rather than a normal operating goal; and that, whenever possible, State agencies shall consider project appli-, cations concurrently.,.This statement could be in the form of adirective from the Governoror a legislative resolution. VIII. Adequate funds and personnel must be, provided so that time limits can be met and the recommended regulations., policies, and procedural changes called lor can be adopted and implemented by December 31, 1976. Ix. State agencies should be given the flexibility to participate in. joint public notices with the U.. S. Army Corps of Engineers and other State agenciesi The Regional Water Quality Control Boards' regulations should be amended to allow this type of notice. X. Most of the recommendations in this report can be carried out administra- tively. It is recommended that the Legislature hold o-@iersight hearings in early 1977 to assess their status and effect. X1. Many of the problems that State agencies face also occur in Federal agencies; it is recommended that the Legislature adopt a resolution endorsing Federal-State cooperation in the-regulation of dredg- ing, and urging the Federal Government to take similar:steps with respect to Federal agencies as are recommended Page 13 here for State agencies. CONCLUSION These are the recommendations that the BCDC, as the study agency, proposes Some require State legislative action. Most can be imple- mented immediately by the regulatory agencies themselves without legislative action. Change is always difficult, but the pressures today are strong for a change in excessive and unnecessary regulations. If the changes are made haphazardly, the results will be unpre- dictable and possibly harmful to the environment we all want to protect. The approach proposed here will simplify the regulatory maze and speed application processing without undue disruption of the affected agencies' other activities or jeopardizing the critical protection of natural resources. Page 14 TO& 3 6668 00002 1396