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PC: 3-18-93 SA-92-41 STAFF ANALYSIS BACKGROUND: On September 7, 1993, Enforcement File No. EN-92-157 was opened due to the operation of a grading excavation on this site without a permit. Repeated attempts to contact the owners were unsuccessful until a letter was hand delivered to the owner's attorney, Stan Wise, on November 26, 1991. A final notice was sent to the owners on December 20, 1991. On February 20, 1992, B. Demar Hooper, representing the owners,told the Enforcement Section that a Site Approval application for fish ponds would be filed shortly. On July 2, 1992, the owner submitted Site Approval Application No. SA-92-41 for the creation of the fish ponds. On January 20, 1993, this application was approved. On February 1, 1993, B. Demar Hooper of Hackard and Taylor, representing Joe Hardesty, filed an appeal of Development Services Conditions 1(c) and 1(1) and Department of Fish and Game Conditions 4(a) and 4(b). Development Services Condition 1(c): 1.c. The applicant shall submit a copy of the approved permit or letter waiving the requirement from the Water Quality Control Board prior to the start of any on-site grading. Appeal Statement: In his appeal, the applicant argues that this project is exempt from the requirement of obtaining a permit from the Regional Water Quality Control Board (RWQCB): 'Mr. Hardesty's proposed project is not subject to regulation under Section 404 of the Clean Water Act. Under 33 CFR Section 3232.4(a)(3), any discharge of dredged or fill material that may result from the construction or maintenance of farm or stock ponds is exempt from the requirement of obtaining a 404 Permit. 'Staff has not presented evidence to justify why Mr. Hardesty must obtain Water Quality Certification or waiver when he is not required by Federal law to do so. We request that this condition be eliminated.' Response to Appeal Statement: The RWQCB maintains jurisdiction over discharges into'waters of the Slate,'which can include all rivers, creeks, streams, and canals (Rivedront Development Permit Handbook, Office of Planning and Research). While this project may be exempt from a 404 permit as a result of construction or maintenance activities, RWQCB has indicated that the project is not exempt from a Federal National Pollutant Discharge Elimination System (NPDES) Permit for ongoing operations that may result in discharge into State waters. During storms, the ponds may discharge into the tributary. If RWQCB finds that this project is exempt from any permit requirements relating to water quality, this condition will be satisfied. It should be noted that Public Health Services Condition No. 3(a) also requires approval from RWQCB. -14-