Mr. Alex Bergtraun
Congregation Beth El
2301 Vine Street
Berkeley, CA 94708

Subject:Conditional Water Quality Certification and Waiver of Waste Discharge Requirements for Temple Beth-El/Cordonices Creek Project, Berkeley, Alameda County.

Dear Mr. Bergtraun:

We have received and reviewed the application for Clean Water Act Section 401 Water Quality Certification (Certification) for the above-referenced project from Congregation Beth-El via its agent, William Vandivere, Clearwater Hydrology, 2974 Adeline Street, Berkeley, CA 94703.

The U.S. Army Corps of Engineers has determined the project requires an individual Department of the Army Permit pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344). As such, you have applied to the Board for Certification that the proposed project will not violate State water quality standards. We hereby issue a conditional water quality certification and waiver of waste discharge requirements (WDRs) for the project.

Project

The proposed project would construct a new temple, parking, and other associated infrastructure at 1301 Oxford Street in Berkeley. As a part of that project, the applicant would stabilize and enhance an existing 112-foot long unculverted reach of Cordonices Creek where it crosses the Temple Beth-El site, which is just uphill from Live Oak Park and immediately east of Oxford Street. Specifically, it would: construct a rock-lined step-pool channel with an average longitudinal slope of 7.4%; place native rock interplanted with post tree plantings and other cuttings and seedlings, and including placed woody debris, to a height no higher than 3.7 feet above the bottom of the creek channel; remove the existing non-native vegetation from the creek channel and banks, and immediately adjacent portions of the site, particularly including existing eucalyptus trees, invasive ivies, and other vegetation; regrade the creek banks to stable slopes; and, construct a creek viewing/meditation area for the congregants. In addition, the applicant would construct, and operate and maintain for the life of the projects, an inline stormwater treatment device that will remove pollutants from project runoff before it is discharged to Cordonices Creek.

On the project site, the creek's grade is controlled at either end by existing culverts. As such, while it appears likely to continue eroding, it is possible that in the future, the creek could reach a stable grade similar to that seen downstream in Live Oak Park, albeit with a large drop between the existing upstream culvert and the earthen banks. The drop could be significantly greater than the existing drop, which presently appears to preclude or significantly reduce the possibility of fish passage across the site being established in the future. In addition, the site includes a number of landslides that could activate under heavy rain conditions and/or as the creek continues to downcut. The proposed creek work would reduce the likelihood of the slides activating and eroding into the creek.

CEQA

The City of Berkeley certified an EIR for the project on September 25, 2001.

Impacts

The Project will result in the placement of fill and regrading of approximately 118 linear feet (0.04 ac) of the freshwater riparian waters of Cordonices Creek on the Project site.

Mitigation

The Project's proposed regrading, removal of existing non-native vegetation, and planting would enhance and restore the existing reach of open, eroding creek, and result in the creation of a riparian area and adjacent vegetated corridor of approximately 0.22 acres. Jurisdictional area is expected to expand slightly.

Certification and Waiver:I hereby issue an order certifying that with the incorporation of the following conditions, any discharge from the applicant's proposed project described in its application will comply with the applicable provisions of Sections 301 ("Effluent Limitations"), 302 ("Water Quality Related Effluent Limitations"), 303 ("Water Quality Standards and Implementation Plans"), 306 ("National Standards of Performance"), and 307 ("Toxic and Pretreatment Effluent Standards") of the Clean Water Act. I also find that waiving WDRs for this specific discharge is not against the public interest. Pursuant to Regional Board Resolution No. 83-3, WDRs are hereby waived for this project. The following conditions are associated with this certification and waiver:

1. Certification is conditioned upon total payment of the full fee required in State Regulations (23 CCR Section 3833). The total fee for this project is $1000, of which $500 has been received to date. The remaining $500 is due upon receipt of this Certification;
2. No fueling, cleaning, or maintenance of vehicles or equipment shall take place within Cordonices Creek or within any areas where an accidental discharge to the Creek may occur;
3. Except as expressly allowed in this Certification, the discharge, or creation of the potential for discharge, of any soil materials including fresh concrete, cement, silts, clay, sand, and other organic materials to waters of the State is prohibited;
4. Prior the commencement of the project, the applicant shall obtain and adhere to the conditions of a Department of Fish and Game Streambed Alteration Agreement;
5. The applicant shall implement its revised "Mitigation and Monitoring Plan for the Codornices Creek (Beth El) bank stabilization and fisheries restoration project, 1301 Oxford Street, Berkeley, CA," dated January 22, 2003, with the following addition: the longitudinal and cross-section monitoring completed as a part of the annual channel survey (Task 1), shall also be completed in the final year of monitoring. This results in this survey being completed annually in 2004-2006, 2008, and then in 2013 under the present implementation schedule. Also, the results of the monitoring shall be reported annually to the Regional Board, at a regular date to be identified by the permittee. The annual reports shall include the results of monitoring, including collected data and appropriate analysis, photographs, discussion of trends, problems and successes, remedial actions, performance relative to the project's success criteria, and all other information, as appropriate. All mitigation monitoring reports shall include the project's site number, 02-01-C0630, on the title page;
6. This certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to Section 13330 of the California Water Code (CWC) and Section 3867 of Title 23 of the California Code of Regulations (23 CCR); and,
7. This certification action is not intended and shall not be construed to apply to any discharge from any activity involving a hydroelectric facility requiring a Federal Energy Regulatory Commission (FERC) license or an amendment to a FERC license unless the pertinent certification application was filed pursuant to 23 CCR Subsection 3855(b) and that application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought.

Please be aware that any violation of water quality certification or waiver of WDR condition is subject to administrative civil liability pursuant to CWC Section 13350. Failure to meet any condition of a certification may subject you to liability imposed by the Board to a maximum of $1,000 per day of violation or $10 for each gallon of waste discharged in violation of this certification and waiver of WDR.

We anticipate no further action on this application. However, should new information come to our attention that indicates a water quality problem with this project, the Regional Board may issue Waste Discharge Requirements pursuant to 23 CCR Section 3857.

If you have any questions regarding this Certification and Conditional Waiver of WDRs, please contact Keith Lichten of my staff at (510) 622-2380 or via e-mail to khl@rb2.swrcb.ca.gov.

Sincerely,

Loretta K. Barsamian
Executive Officer

Cc:Tom Filler, SWRCB-DWQ
Bob Smith, USACE, Regulatory Division
Tim Vendlinski, U.S. EPA, WTR-8
Janice Gan, CDFG