State Waters Determination and Stream Buffers

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State Waters Determination and Stream Buffers
Level IB Advanced Fundamentals Education and
Certification for Persons Involved in Land
Disturbing Activities
Issued May 2009
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Overview

• What is a State Water?
• Who determines State Waters?
• How to determine State Waters
• Functions of State Water buffers
• What are the rules for State Waters?
• GA EPD variance procedures and exemptions

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What is a State Water???

• According to the GA ES Act of 1975, State
  Waters includes any and all rivers, streams,
  creeks, branches, lakes, reservoirs, ponds,
  drainage systems, springs, wells, and other
  bodies of surface or subsurface water, natural or
  artificial, lying within or forming a part of the
  boundaries of the State, which are not entirely
  confined and retained completely upon the
  property of a single individual, partnership, or
  corporation.

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State Waters
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Who determines State Waters?

• In areas where there is a certified local issuing
  authority (LIA), State Waters determinations are
  made by the LIA.
• In areas where there is not a certified issuing
  authority, GA EPD will confirm State Waters and
  buffer delineations as shown on ESPC plans.

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Field Guide for Determining The Presence of State
Waters That Require a Buffer

• Issued September 2006 by GA EPD
• Available at www.gaepd.org and
• www.gaswcc.georgia.gov

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Steps for Determining the Presence of State
Waters and Buffer Requirements

• Review the topography of the ESPC Plan for
  natural or artificial features that may indicate
  the presence of State Waters.
• Walk the site in order to identify State Waters
  as defined.
• Begin the inspection at one end of the potential
  State Waters and walk the entire length of the
  State Waters until it exits the property.

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Steps for Determining the Presence of State
Waters and Buffer Requirements

• Examine the drainage feature using the field
  guide to determine whether the feature is
  perennial, intermittent, or ephemeral. If the
  drainage feature is determined to be perennial or
  intermittent, then a State-mandated buffer
  exists. If the drainage feature appears to be
  ephemeral then go to Step 5 to make a final
  determination.

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Steps for Determining the Presence of State
Waters and Buffer Requirements

• If evidence of base flow is present during the
  site inspection, the stream is either perennial
  or intermittent and will require a buffer. If
  the site is visited during a dry phase and base
  flows are not evident, the drainage may be
  ephemeral or intermittent. The ephemeral stream
  guidance from the field guide should be used to
  make the final determination as to whether the
  stream is ephemeral.

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Steps for Determining the Presence of State
Waters and Buffer Requirements

• If there is still a question about base flow
  after Step 5 is completed, then the North
  Carolina Division of Water Quality Stream
  Identification Method, Version 3.1 (or most
  current version) should be used to verify whether
  or not base flow is present.
• The determination should be documented in writing.

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Wrested Vegetation

• Look for a well defined channel and places or
  patterns of wrested vegetation
• vegetation wrested from channel by normal stream
  flow or wave action
• Walking the site to determine State Waters is a
  must!

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Wrested Vegetation
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Normal Stream Flow Definition

• Intermittent headwater streams with base flow
  during any period of the year will retain the
  state mandated buffer protection
• Base Flow the discharge that enters a stream
  channel mainly from groundwater through the soil.
  Base flow also includes spring flow into stream.
• ESPC design professionals determine existence of
  base flow, based upon site topography, soils, and
  vegetation

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Normal Stream Flow Definition

• Normal Stream Flow, for non-trout waters only,
  means any stream flow that consists solely of
  base flow or both base flow and direct runoff
  during any period to the year.
• Stream Bank definition, Rule 391-3-7.01(w).
• Applies to State Waters not classified as trout
  waters.
• Waives stream buffer requirements for true storm
  water drainage features, with no base flow
  component.

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Considerations

• Ephemeral trout streams are not exempt from the
  State-mandated buffer requirements.
• Trout (cold water) streams are delineated in the
  Georgia Water Quality Control Rules
  (391-3-6-.03).
• Buffer requirements are in the NPDES State
  General Permits for Construction Activities.
• DNR Coastal Resources Division should be
  contacted for marsh delineations.
• State Waters may also be Waters of the U.S.

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Other Clues for State Waters

• Soils
• Hydric soils
• Topography
• Drainage Area
• Substrate in Channel
• Sandy substrate
• Vegetation types
• Water-loving species

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Wrested Vegetation
Channel
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Defined Channel
Wrested Vegetation
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Misconceptions in State Waters Determinations

• These factors are not to be considered
• Whether a stream appears on a topographical map
  as a solid or dashed blue line
• Whether the stream originates on the property
• Whether a stream that originates on the property
  flows into another stream before it leaves the
  property
• The duration of water flow in the stream

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Misconceptions in State Waters Determinations

• These factors are not to be considered
• The absence of observable aquatic life
• Whether or not you Get your boots wet

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Functions of Buffers

• Reduces storm runoff velocities
• Acts as a screen for visual pollution
• Reduces construction noise
• Improves aesthetics on the disturbed land
• Filters and increases infiltration of runoff
• Cools rivers and streams by providing shade

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Functions of Buffers

• Provides food and cover for wildlife and aquatic
  organisms
• Aids in flood protection
• Protects channel banks from scour and erosion

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What happens if it is State Waters?
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Review of Stream Buffer Rules

• Measured horizontally from point where vegetation
  has been wrested by normal stream flow or wave
  action
• 25 Feet - Warm Water streams
• 50 Feet - Trout (cold) streams

Local issuing authorities may require
additional buffers in local ordinance!
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Trout Stream
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Coastal Areas

• Buffers for saltwater marshes and tidally
  influenced streams are measured from the marsh
  jurisdictional line, which is determined by the
  Coastal Resources Division of the GA DNR,
  pursuant to the Coastal Marshland Protection Act.

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What if it is necessary to work in the buffer?

• The minimum 25 or 50 (Trout Streams)
  undisturbed State Waters buffer shall be
  maintained, except where the Director of GA EPD
  determines to allow a variance that is at least
  as protective of natural resources and the
  environment.
• Variances for the State minimum buffer may only
  be issued by GA EPD, not by local issuing
  authorities.
• Check with Federal regulators to ensure
  compliance with Federal regulations (U.S. Army
  Corps of Engineers)

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Activities exempt from stream buffer variance
requirements

• Drainage structures on warm water streams only
• Roadway drainage structures on warm water and
  trout streams.
• Water line, sewer line crossings (within 25
  degrees of perpendicular to the stream)

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Drainage Structures

• A device composed of a virtually nonerodible
  material such as concrete, steel, plastic or
  other such material that conveys water from one
  place to another by intercepting the flow and
  carrying it to a release point for storm water
  management, drainage control, or flood control
  purposes.
• 
  O.C.G.A 12-7-3 (7)

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Roadway Drainage Structures

• A device such as a bridge, culvert, or ditch,
  composed of a virtually nonerodible material such
  as concrete, steel, plastic, or other such
  material that conveys water under a roadway by
  intercepting the flow on one side of a traveled
  roadway consisting of one or more defined lanes,
  with or without shoulder areas, and carrying
  water to a release point on the other side.
• 
  
  O.C.G.A 12-7-3 (13)

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General Variance for Trout Streams

• Average annual flow less than 25 gpm.
• Two methods for determination
• (1) USGS unit area runoff map to determine
  watershed acreage
• (Open-File Report 82-557).
• (2) Hydrologic analysis by a registered
  engineer or geologist.

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General Variance for Trout Streams

• Total length on property cannot exceed 200 feet.
• Downstream end of the pipe must terminate 25 feet
  before the property boundary.
• Information must be provided to the LIA or GA
  EPD, as appropriate.

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Buffer Variances

• Buffer variances will only be
• considered for the following ten criteria (a j)

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Buffer Variance Criteria (a)

• The project involves the construction or repair
  of a structure which, by its nature, must be
  located within the buffer
• dams
• public water supply intake structures
• waste water discharges
• docks and boat launches
• stabilization areas of public access to water

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Buffer Variance Criteria (b)

• The project will result in the restoration or
  enhancement to improve water quality and/or
  aquatic habitat quality.

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Buffer Variance Criteria (c)

• Buffer intrusion is necessary to provide
  reasonable access to a property or properties.

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Buffer Variance Criteria (d)

• The intrusion is for gravity-flow sewer lines
  that cannot reasonably be placed outside the
  buffer, and stream crossing and vegetative
  disturbance are minimized.

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Buffer Variance Criteria (e)

• Crossing for utility lines, including but not
  limited to
• gas
• liquid
• power
• telephone or other pipelines
• (provided that the number of crossings and the
  amount of vegetative disturbances are minimized)

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Buffer Variance Criteria (f)

• Recreational foot trails and viewing areas,
  providing that impacts to the buffer are minimal.
  

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Buffer Variance Criteria (g)

• The project involves construction of
• one single family home for residential use by the
  owner of the property and there is no opportunity
  to develop under any reasonable design
  configuration.

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Buffer Variance Criteria (h)

• Project will
• require a permit from the U.S. Army Corps of
  Engineers (COE) for impacts to jurisdictional
  waters of the U.S.
• the COE has approved a mitigation plan
• implementation of the plan is a 404 permit
  condition
• - Applicable to non-trout waters only -

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Buffer Variance Criteria - (i)

• Project includes a plan that shows that the
• completed project will maintain or improve water
• quality downstream of the project. This criteria
• requires a water quality model acceptable to
• GA EPD.
• - Applicable to non-trout waters only -

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Buffer Variance Criteria - (j)

• Project with a buffer disturbance located
• in, or upstream and within 10 linear miles of an
  impaired stream segment as shown on the Georgias
  Section 303(d) list, and
• includes a plan that shows that the completed
  project will maintain or improve water quality in
  the listed segment. This criteria requires a
  water quality model acceptable to GA EPD.
• - Applicable to non-trout waters only -

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Variance Application Review

• Applications are reviewed for completeness within
  10 calendar days of receipt.
• Complete applications are reviewed within 60
  calendar days of receipt.
• During this timeframe, review comments are
  forwarded to the applicant or GA EPD issues a
  30-day public advisory and advises the applicant
  to publish a 30-day public advisory.

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Application Processing Delays

• Not addressing all of the checklist items which
  results in an incomplete plan
• Delayed response to GA EPD comments during the
  60-day review period
• Not submitting the original tear sheet or
  affidavit for the applicants public notice

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New Guidance

• Mitigation guidelines for buffer variance
  criteria (h), (i) and (j).
• Guidelines for stream bank and shore line
  stabilization projects.
• New guidelines are currently available on the GA
  EPD website, www.gaepd.org.

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Stream buffer variance and LDA Permits

• The LIA may not issue a land disturbing permit
  for a project proposing to encroach into the
  State stream buffer until a GA EPD variance has
  been granted
• Do not assume that since the stream buffer
  variance has been submitted that it will be
  approved
• If a variance is approved, it is the local
  issuing authoritys responsibility to inspect and
  enforce for compliance
• If the stream buffer variance is not acceptable
  to the LIA, the LIA may issue an LDA without
  allowing encroachment into the buffer

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What do I do if I observe a State Waters buffer
encroachment during inspection?

• Check to see if the activity is exempt from
  buffer requirements, if not then
• Check to see if a GA EPD variance has been
  granted. The GA EPD variance must be presented
  in writing!
• If the activity is not exempt and a GA EPD
• variance has not been granted, then
• enforcement action is required!

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Enforcement Action

• According to the Georgia ES Act of 1975, if
  there is a failure to maintain a stream buffer, a
  STOP-WORK ORDER shall be issued by the local
  issuing authority or GA EPD
• The STOP-WORK ORDER shall be in effect until the
  necessary corrective action or mitigation has
  occurred

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Summary

• Buffers on state waters are valuable in
  protecting and conserving land and water
  resources.
• Walk sites and gather all necessary information
  to determine State Waters
• Some activities are exempt from stream buffer
  requirements
• i.e. drainage structures, sewer crossings, etc.
• All non-exempt activities within a state water
  buffer require a GA EPD stream buffer variance

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For More Information

• Stream buffer variance application and checklist
  of required information can be found at
  www.gaepd.org click on Documents
  Publications and Forms Watershed Protection
  Branch Erosion and Sedimentation
• Recommend consulting design professional for
  assistance with the variance process
• Contact Peggy Chambers, Michael Berry or Jean
  Shepherd at [phone] with stream buffer
  questions
• DNR Coastal Resources Division at [phone]

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QUESTIONS?