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4 Environmental Analysis 4.4 Biological Resources for discharges of pollutants into WOTUS, and Section 401 water quality certifications for Section 404 permits. USACE retains and has not delegated jurisdiction to issue Section 404 permits for discharges of fill to WOTUS. Accordingly, the SWRCB and RWQCBs have, respectively, issued the statewide Construction General NPDES Permit and the MS4 NPDES Permits, which constitute both federal CWA Section 402 permits and state Porter-Cologne WDRs under guidance issued by the SWRCB. Discharges of fill subject to USACE CWA Section 404 permitting are reviewed and protected by the SWRCB by issuance of Section 401 water quality certifications, and no additional state law WDRs are required to authorize discharges of fill. Discharges of fill to Waters of the State that are not also WOTUS are subject to regulation by the SWRCB or appropriate RWQCBs, as applicable. Any Project proponent proposing such discharges of fill must submit a report of waste discharges along with USACE jurisdictional disclaimers and, prior to placing such fill, must either obtain coverage for such discharges under: (i) The SWRCB's Statewide General Waste Discharge Requirements for Dredged or Fill Discharges to Waters Deemed by USACE to be Outside of Federal Jurisdiction (Order No. 2004-004-DWQ); (ii) Individual WDRs; or (iii) A conditional waiver of WDRs (Guidance for Regulation of Discharges to "Isolated" Waters). The SWRCB has adopted the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, which became effective on May 28, 2020 (SWRCB 2019). The Procedures define an area as a wetland as follows: an area is a wetland if, under normal circumstances: (1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; (2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and (3) the area's vegetation is dominated by hydrophytes or the area lacks vegetation. The Procedures consider natural wetlands, wetlands created by modification of surface Waters of the State, and areas that meet the current or historic definitions of WOTUS, to be Waters of the State (SWRCB 2019). In addition, the Procedures consider artificial wetlands (i.e., wetlands that result from human activity) that meet specific criteria to be Waters of the State (SWRCB 2019). However, contrary to the USACE wetland definition, California's wetland delineation also protects non-vegetated wetlands. This definition does not affect the meaning of Waters of the State as it pertains to SWRCB/RWQCB jurisdiction pursuant to the Porter-Cologne Act, nor does it modify the current authorities of the SWRCB/RWQCB to protect water quality. 4.4.2.7 California Fish and Game Code Sections 1600-1616 Pursuant to Sections 1600-1616 of the California Fish and Game Code, the CDFW regulates all substantial diversions, obstructions, or changes to the natural flow or the bed, channel, or bank of any river, stream, or lake which provides habitat and supports fish or wildlife. The CDFW defines a "stream" (including creeks and rivers) as "a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This includes watercourses having surface or subsurface flow that supports or has supported riparian vegetation" (CCR, Title 14, Division 1, Subdivision 1, Chapter 1, Section 1.72). "Bank" means the slope or elevation of land that bounds the bed of the stream in a permanent or Griffith Energy Storage Project 4.4-25 Tetra Tech/SCH 2022120675 Draft Environmental Impact Report August 2023