Wetlands, Endangered Species, and Biosolids

1
Wetlands, Endangered Species, and Biosolids

• An Overview of Federal and State Regulations

Philip C. Lowe 303-299-8259 plowe_at_sah.com
2
Clean Water Act Section 404
Brief History of Corps Regulatory Program
Rivers and Harbors Act of 1899 Clean Water Act
Section 404 33 U.S.C. 1344 et seq A regulatory
pendulum driven by politics and
litigation Politics 1988 National Wetlands
Policy Forum No Net Loss of Wetlands
statement Litigation - From Riverside Bayview
Homes to SWANCC and beyond
3
Overview of 404 Regulations

• Permits required for Certain Activities in
  Certain Areas.
• Activities - Discharge of Dredged or Fill
  Materials 33 CFR Part 323.
• Areas - Waters of the United States and
  Navigable Waters 33 CFR Parts 328 and 329.

4
Permit Process

• Public Interest Review
• Relative extent of public and private need for
  the proposed activity.
• Practicability of using alternative locations and
  methods to accomplish the objective of the
  proposed activity.
• Extent and permanence of the beneficial and/or
  detrimental effects the proposed activity is
  likely have on the public and private uses to
  which the area is suited.
• EPA 404(b)(1) Guidelines 40 CFR Part 230

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3 Step Processfor 404(b)(1)

• Practicable Alternatives Analysis
• Avoid
• Minimize
• Mitigate
• Compensatory Mitigation for Losses of Aquatic
  Resources Proposed Rule March 28, 2006 Federal
  Register / Vol.71, No.59 pages155520-56

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Compliance with other Laws

• Section 401 Water Quality Certification 33 CFR
  Part 325.2(b)(1)
• Endangered Species Act Compliance 33 CFR Part
  325.2(b)(5)
• NEPA Compliance33 CFR Part 325 Appendix B
• Coastal Zone Management Consistency - 33 CFR Part
  325.2(b)(2)
• NHPA Compliance (Cultural Resources) - 33 CFR
  Part 325 Appendix C

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Types of Section 404 Permits

• Nationwide and Regional General Permits33 CFR
  Part 330
• Individual Permits

8
Nationwide 404 Permits

• Effective March 18, 2002.
• 44 Different Activities intended to have no
  more than minimal site-specific and cumulative
  impacts.
• Expire March 18, 2007.
• Minimal Notification and Permit Processing
  Requirements.

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Processing Steps for Individual 404 Permits

• Pre-Application Meeting with Corps
• Permit Application submitted - ENG Form 4345
• Application Accepted and Public Notice Issued
• Public Comment Period
• Application and Public Comment Review by Corps
• Consultation with other Federal Agencies
• If needed, District Engineer may request
  applicant to submit additional information
• Public Hearing held (if appropriate as determined
  by Corps)
• District Engineer Decision - Permit is either
  Issued or Denied.

10
Current 404 Issues

• Tulloch Rule Regulations
• 33 CFR 323.2(d)(2)(i) "The Corps and EPA regard
  the use of mechanized landclearing equipment to
  conduct landclearing, ditching, channelization,
  in-stream mining or other earth moving activity
  in waters of the United States as resulting in a
  discharge of dredged material unless project
  specific evidence shows that activity results in
  only incidental fallback."

11
Current 404 Issues

• Incidental Fallback" is now defined
• 33 CFR Part 323.2(d)(2)(ii) "Incidental Fallback
  is the redeposit of small volumes of dredged
  material that is incidental to excavation
  activity in waters of the United States where
  such material falls back to substantially the
  same place as the initial removal. Examples of
  incidental fallback include soil that is
  disturbed when dirt is shoveled and the
  back-spill that comes off a bucket when a small
  volume of soil or dirt falls into substantially
  the same place from which it was initially
  removed.

12
Current 404 Issues

• SWANCC and Jurisdictional Limits
• "We thus decline respondent's Corps' invitation
  to take what they see as the next ineluctable
  step after Riverside Bayview Homes holding that
  isolated ponds, some only seasonal, wholly
  located within two Illinois Counties, fall under
  Section 404(a)'s definition of navigable waters
  because they serve as habitat for migratory
  birds."
• "We said in Riverside Bayview Homes that the word
  "navigable" in the statute was of "limited
  effect" and went on to hold that Section 404(a)
  extended to nonnavigable wetlands adjacent to
  open waters. But it is one thing to give a word
  limited effect and quite another to give it no
  effect whatever."

13
Jurisdictional Issues

• Corps/EPA Interpretation Memo after SWANCC
  Appendix A to ANPRM in Federal Register Vol. 68,
  No. 10 January 15, 2003
• Field Staff may not rely upon use of waters or
  wetlands as habitat for migratory birds as the
  sole basis for asserting regulatory jurisdiction
  under the CWA.
• The Supreme Court holding was strictly limited to
  waters that are non-navigable, isolated and
  intrastate. Field staff should continue to
  exercise CWA jurisdiction to the full extent of
  their authority under the statute and regulations
  consistent with court opinions.

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Jurisdictional Issues

• Corps Interpretation Memo (continued)
• The Supreme Court did not overrule United States
  v. Riverside Bayview Homes 474 U.S. 121 (1985),
  which upheld the Corps jurisdiction over
  traditionally navigable waters, interstate
  waters, their tributaries and wetlands adjacent
  to each.
• Therefore, the waters listed in 33 CFR 328.3(a)
  are unaffected by the SWANCC decision except
  those described at 328.3(a)(3) "All other waters
  such as intrastate lakes, rivers, streams
  (including intermittent streams), mudflats,
  sandflats, wetlands, sloughs, prairie potholes,
  wet meadows, playa lakes, or natural ponds, the
  use, degradation or destruction of which could
  affect interstate or foreign commerce..."

15
Jurisdictional Issues

• Corps Interpretation Memo (continued)
• Waters covered solely by section 328(a)(3) that
  could affect interstate commerce solely by virtue
  of their use as habitat by migratory birds are no
  longer considered waters of the United States.
  Because the Supreme Court did not address what
  other connections to interstate commerce might
  support the assertion of CWA jurisdiction, Corps
  and EPA counsel have directed field staff to
  consult legal counsel as specific cases arise.
• For example, the Great Salt Lake in Utah is an
  isolated, intrastate water, but it is navigable
  in fact (United States v. Utah 403 U.S. 9 (1971))
  and has substantial connections with interstate
  commerce (Hardy Salt Co. v. Southern Pacific
  Transportation Co., 501 F.2d 1156 (10th Cir.
  1974)).

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ENDANGERED SPECIES ACT OVERVIEW

• Protect and Recover Imperiled Species and the
  Ecosystems Upon Which they Depend
• Signed by President Nixon in 1973 after 355-4
  House of Representatives Vote
• Often referred to as the crown jewel of
  environmental laws
• 16 U.S.C. 1531 et seq

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Section 4 - Listing

• Endangered species in danger of extinction
  throughout all or a significant portion of its
  range
• Threatened species is likely to become
  endangered within the foreseeable future
  throughout all or a significant portion of its
  range
• Species includes subspecies, varieties and for
  vertebrates, distinct population segments

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Factors Considered for Listing

• Solely on the basis of species biological status
  and threats to its existence
• Damage to or Destruction of a Species Habitat
• Overuse of the Species for Commercial,
  Recreational, Scientific or Educational Purposes
• Disease or Predation
• Inadequacy of Existing Protection or
• Other Natural or Human-related threats to the
  species survival

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Candidate Species

• List of species that for which there is enough
  information to warrant proposing them for
  listing, but that have not yet been proposed for
  listing because of higher listing priorities
• FWS works with states, tribes and private
  landowners and other federal agencies to carry
  out conservation actions for candidate species to
  prevent further decline and possibly eliminate
  the need for listing

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Section 9 - Prohibition on Take

• Unlawful for any person to take a listed
  species without a permit
• Take means Harass, Harm, Pursue, Hunt, Shoot,
  Wound, Kill, Trap, Capture or Collect, OR attempt
  to engage in any such conduct
• Harm is defined in regulations

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Harm

• Harm means an act which actually kills or
  injures fish or wildlife. Such an act may include
  significant habitat modification or degradation
  which actually kills or injures fish or wildlife
  by significantly impairing behavioral patterns,
  including, breeding, spawning, rearing,
  migrating, feeding or sheltering. 50 CFR Part
  222.102

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Section 7 Consultations

• Ensure that actions by any federal agency
  (including those involving a permit or license
  applicant) are not likely to jeopardize the
  continued existence of any threatened or
  endangered species or result in the destruction
  or adverse modification of critical habitat

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Section 7 Consultations

• Consultation is to be completed in 90 days (with
  procedures to extend the period if needed)
• Written opinion on how the proposed action will
  affect the species or critical habitat
• If jeopardy or adverse habitat modification is
  found, reasonable and prudent alternatives must
  be suggested

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Section 10 - Incidental Take Permits

• Conservation Plan first required which describes
• Impact which will likely result from such taking
• Steps taken to minimize and mitigate such impacts
  and funding to implement such steps
• Alternatives analysis
• Other measures agency may require as necessary
  and appropriate

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Habitat Conservation Plans

• No Surprises Rule and Permit Revocation
• Placed limits on agencies ability to require
  additional mitigation after an incidental take
  permit has been issued
• Subsequent litigation led to re-establishing
  permit revocation rule 50 CFR Parts 17.22 and
  17.32
• Incidental take permit can be revoked as a last
  resort in the unexpected and unlikely situation
  in which continued permitted activities would
  likely jeopardize continued existence of the
  species covered by the permit.

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Candidate Conservation Agreements with Assurances

• Voluntary agreements with private landowners for
  specific conservation needs of a candidate or
  at-risk species, intended to remove or reduce
  threats to the species.
• If species is subsequently listed, landowner will
  not be required to do anything more than
  specified in the CCAA and will receive incidental
  take permit.
• Species covered in a CCAA may include both
  animals and plants, and either candidates for
  listing or species that have already been
  proposed as threatened or endangered.
• Draft CCAA handbook is available at
  http//www.fws.gov/endangered/candidates/ccaahandb
  ook.html

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Safe Harbor Agreements

• Provide regulatory assurance to landowners
  voluntarily improving habitat for endangered
  species.
• At the end of the SHA, future land development
  won't be limited if land is returned to baseline
  conditions, even if doing so results in
  incidental take.

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Conservation Banks and ESA Grants

• Conservation banks are lands acquired and managed
  for specific endangered species, usually
  protected permanently by conservation easements.
• Once a established, fixed number of "mitigation
  credits" may be sold to offset adverse effects of
  other projects on a species.
• Species benefit from protection of much-needed,
  secure habitat.
• Section 6 provides for financial grants to
  States, Territories and Landowners See
  http//www.fws.gov/Endangered/grants/

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BIOSOLIDS

• Clean Water Act Section 405 33 U.S.C. 1345
• Prohibits Disposal of Sewage Sludge from POTWs
  except in compliance with regulations
• Outlined timetable for developing regulations
  based on numerical limits and management
  practices to protect public health and the
  environment

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Federal Biosolids Regulations

• Round 1 Numerical Limits and Management
  Practices for Toxic Pollutants.
• Round 2 Those pollutants not addressed in Round
  1.
• EPA did not meet the timetable for promulgating
  regulations, which led to a citizens suit and
  consent decree.
• Round 1 regulations promulgated at 40 CFR Part
  503, February 19, 1993.

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Biennial Regulatory Review

• 405(d)(2)(C) requires EPA to conduct biennial
  review of biosolids regulations.
• EPA commissioned National Research Council (NRC)
  to review technical basis for land application
  regulations.
• NRC Report issued July 2002 Biosolids Applied to
  Land Advancing Standards and Practices.
• EPA prepared a December 2003 response to NRC
  report.

32
Federal Regulations

• 40 CFR Part 503 - Standards for the Use or
  Disposal of Sewage Sludge
• Land Application
• Surface Disposal
• Pathogens and Vector Attraction Reduction
• Incineration

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Colorado Biosolids Regulation 64

• Purpose To establish requirements,
  prohibitions, standards and concentration
  limitations on the use of biosolids as a
  fertilizer and/or organic soil amendment in a
  manner so as to protect the public health and
  prevent the discharge of pollutants into state
  waters
• Adopted November 2, 1993 Last Amended in 2003
• Incorporates by Reference EPA biosolids
  regulations

34
Letters of Intent for Use and Distribution

• Must be submitted to CDPHE Water Quality Control
  Division and to local health authority (County
  Health Department).
• 64.10 (A) sets out information requirements for
  different uses. 64.10(A)(3), for projects
  involving application of biosolids to
  agricultural land or reclamation of disturbed
  land, requires letter of intent for each
  application site.

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Notices of Authorization

• Water Quality Control Division must notify
  applicant within 30 days of receipt of Letter of
  Intent if, and in what respects, application is
  incomplete.
• Division must issue or deny Notice of
  Authorization for the Use and Distribution of
  Biosolids within 30 days of determination that
  Letter of Intent is complete.
• Issuance or Denial of Authorization may be
  appealed within 30 days of issuance or denial by
  applicant or any other person potentially
  adversely affected.

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Notices of AuthorizationTerms and Conditions

• At a minimum
• Issuance Date
• Terms for Modification, Revocation, or
  Termination
• Biosolids monitoring requirements
• Soils Monitoring requirements (if applicable)
• Other monitoring requirements determined by the
  division to be applicable (vegetation,
  groundwater, surface water, etc.)
• Grazing and cropping restrictions, as applicable
• Reporting and Recordkeeping requirements
• Labeling requirements, as applicable
• Public Access restrictions, as applicable and,
• Statement of applicable civil and criminal
  penalties

37
Classification and Use

• 64.12 (A) includes metals based classification
  criteria using 3 tables of ceiling
  concentrations, cumulative pollutant loading
  rates and pollutant concentration limits.
• Regulations have formulas to determine which
  table shall be used to set numeric criteria.
• Pathogen Destruction Criteria also set forth in
  detail at 64.12 (B).

38
Storage Requirements

• Biosolids cannot be stored without a valid Notice
  of Authorization.
• Exceptions
• Process components of permitted domestic
  wastewater treatment facility
• Permitted solid waste disposal facility and,
• Offloading/transportation facilities, so long as
  those facilities are bermed or protected/managed
  to prevent movement of spillage or runoff from
  the transfer area.

39
Storage Requirements

• Storage of Biosolids of less than 14 percent
  solids (at time placed in storage) must comply
  with Waste Impoundment Criteria.
• Storage of Biosolids greater than 14 percent
  solids (at time placed in storage) must be
  operated in a manner to prevent windblown
  biosolids from escaping the storage facility and
  either
• Have berms and impermeable liner with underdrain
  OR,
• Be covered and either bermed and otherwise
  protected to prevent movement of spillage or
  runoff.

40
Distribution and Marketing

• Notice of Authorization Required.
• Unrestricted Use (lawn and garden application)
  Must meet certain pollutant concentration limits,
  pathogen reduction criteria, and labeling and
  information requirements.
• Restricted Use in addition to the above, labeling
  must also include annual pollutant loading rates
  and maximum annual application rates from Table 4
  of 64.14 (B)(2)(c).

41
Use in Agriculture and Reclamation

• 64.15 Sets out requirements.
• Notice of Authorization Required.
• Concentration limits and pathogen reduction
  requirements are specified.
• Land application prohibited if it is likely to
  affect a threatened or endangered species, or the
  designated critical habit of a listed species.

42
Use in Agriculture and Reclamation

• Compliance with cumulative pollutant loading
  limits must be documented with either
• Certification statement that site has not
  received sludge application since January 1,
  1986 OR,
• Data quantifying loadings of cadmium, copper,
  lead, nickel and zinc which have occurred after
  1/1/86 AND data quantifying loadings of arsenic,
  mercury and selenium which have occurred after
  July 19, 1993 demonstrating that the loadings do
  not exceed cumulative application limits from
  Table 2.

43
Notification Requirements for Preparers

• 64.9 (AA) Person who prepares biosolids means
  either the person who generates biosolids during
  the treatment of domestic sewage in a domestic
  wastewater treatment works or the person who
  derives a final product material from biosolids.
• Must provide to the person applying the biosolids
  written notification of total nitrogen
  concentration of the biosolids, on a dry weight
  basis and notice of and necessary information to
  comply with Regulation 64.
• Must also ensure that applicable requirements of
  Regulation 64 are met when the biosolids are
  applied.

44
Application Near State Waters

• No person shall apply biosolids for beneficial
  use on land located upgradient, and within one
  linear mile of a point at which surface waters
  are diverted for use in a public water system,
  unless
• Runoff from the application site does not drain
  into the body of water which is diverted, OR
• A site Operating Plan is prepared and submitted
  with the Letter of Intent which describes
  measures to prevent runoff from the application
  site into the surface water which is diverted
  during any storm event greater than the 10 year
  24 hour storm.

45
Application Near State Waters

• Prohibitions
• Land which is saturated or where water is
  ponding.
• Within 100 feet of a private domestic well or 300
  feet of a community supply well when use is made
  to agricultural land.
• Within 300 feet of a private domestic well or
  1,500 feet of a community supply well when use is
  made for reclamation of disturbed land.

46
Groundwater

• No person shall apply biosolids on land which is
  underlain by groundwater where the annual high
  water table is within five feet of the surface of
  the land. Depth to groundwater is determined by
• Direct observation using wells or piezometers
• USDA Soil Survey Maps and/or,
• Well completion records

47
Slopes Agricultural Land

• No person shall apply biosolids to agricultural
  land on slopes in excess of 15 percent.
• Application on slopes of less than 15 percent
  must conform with requirements of Table 5.
• Requirements based on solids content and slopes.

48
Slopes Disturbed/Reclaimed Land

• No person shall apply biosolids for reclamation
  of disturbed land on slopes in excess of 30
  percent.
• Application on slopes of less than 30 percent
  must conform with requirements of Table 6.
• Requirements based on solids content and slopes.

49
Frozen or Snow-Covered Ground

• Application to frozen, ice-covered or
  snow-covered ground where slope is greater than 6
  percent is prohibited.
• Application to frozen, ice-covered or
  snow-covered ground where slopes are between 3
  and 6 percent is permitted only where there is 80
  percent vegetative ground cover or a runoff
  containment plan has been approved.

50
Soils Limitations

• Application is prohibited
• For beneficial use on land cultivated in food
  crops prohibited where soil pH is less than 6.0.
• For irrigated agricultural land where depth of
  suitable soil is less than 3 feet.
• For dryland agricultural land or range land where
  depth of suitable soil is less than 18 inches.
• For reclamation of disturbed land where depth of
  suitable soil is less than 12 inches.
• Suitable soil depth is defined as the distance
  beneath the level in the soil at which biosolids
  are placed to the level at which impermeable
  substrata are encountered.

51
Nutrient Management

• 64.15(H) No person shall apply biosolids for
  beneficial use to agricultural land such that
  nitrogen application exceeds the agronomic rate
  for the crop or vegetation cultivated.
• Agronomic Rate shall be determined based on
  available nitrogen sources which may include
  biosolids, manures, fertilizers, irrigation
  water, residual soil nitrogen, and soil organic
  matter.

52
Crop Restrictions

• Prohibits application of biosolids considered to
  be Class B (with respect to pathogens) unless
• Food crops with harvested parts that may touch
  the biosolids soil mixture and which grow above
  the soil surface shall not be harvested for 14
  months after application of biosolids.
• Food crops with harvested parts that grow beneath
  the soil surface when biosolids remain on the
  soil surface for 4 months or longer prior to
  incorporation into the soil shall not be
  harvested for 20 months after application.

53
Crop Restrictions

• Prohibits application of biosolids considered to
  be Class B (with respect to pathogens) unless
• Food crops with harvested parts that grow beneath
  the soil surface when biosolids remain on the
  soil surface for less than 4 months prior to
  incorporation into the soil shall not be
  harvested for 38 months after application.
• Food crops, feed crops and non-food crops shall
  not be harvested within 30 days after the
  application of biosolids.

54
Access Restrictions

• Prohibits application of biosolids considered to
  be Class B (with respect to pathogens) unless the
  following requirements are met
• No animal grazing within 30 days of application
  of biosolids.
• Turf may not be harvested for one year after the
  application of biosolids.
• Public access to land with a high potential for
  public exposure shall be restricted for one year
  after the application of biosolids.
• Public access to land with a low potential for
  public exposure shall be restricted for 30 days
  after the application of biosolids.

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Monitoring and Analysis

• Frequency of Monitoring depends upon volumes
  produced. Table 7 of 64.16(A)(1).
• Monthly sampling for greater than 16,500 dry
  short tons/year.
• Table 8 lists analytical parameters and reporting
  units.
• Water Quality Division may require additional
  (type, parameters and frequency) monitoring
  including deep soil, plant tissue, ground or
  surface water monitoring.

56
Soils Monitoring

• Soils sampling required prior to application and
  on a once per application basis.
• Application for 64.16(B) is considered as one
  or more individual applications of biosolids
  which are intended to supply the agronomic
  nitrogen requirement for a crop in a single
  cropping cycle.
• Table 9 lists soil fertility analytical
  parameters and reporting units.
• Table 10 lists soils metals and physical
  characteristics reporting units.

57
Recordkeeping

• Recordkeeping Requirements for Preparers and
  Appliers.
• Records must be maintained for 5 years and made
  available upon request to Water Quality Division
  representatives.

58
Recordkeeping and Reporting

• Annual Self Monitoring Report
• Required for both producers and appliers.
• Due February 19 of each year for January 1 to
  December 31 of preceding year.
• Documentation of compliance with pathogen
  destruction and vector attraction reduction
  criteria.
• Analytical results for biosolids, soils and any
  additional monitoring required.
• Total Amount and disposition of biosolids
  produced during the preceding calendar year,
  including amounts applied to each site issued a
  Notice of Authorization.
• Certification statement per 64.17(C).

59
Biosolids Regulation Working Group

• Triennial Review of WQCC Biosolids Regulation 64
  (5 CCR 1002-64)
• Water Commission Rulemaking proceedings
  anticipated in February 2007