August 2, 2012

Stakeholder Meeting

404 Assumption Review

Project Schedule Review

Summary of Stakeholder Outreach Meetings

Status of Assumption Effort

Statutory Changes

Maintaining Resource Protection

Agenda

The Corps currently administers Section 404 of the federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act.

States can assume the 404 program if the state program is equivalent to the federal program.

DSL is currently taking a close look at assuming the 404 program.

With Legislative authorization, Oregon would submit it application to EPA; and EPA would review, post in Federal Register and transfer the program to Oregon.

404 Assumption Review

Assumption is consistent with DSL mission, strategic plan, and the Healthy Environment Policy Vision

While continuing the stewardship and protection of the states wetland and waterways, DSL also seeks to reduce the regulatory burden of its customers

Removes the duplicative permitting processes for most projects

Why Assume the 404 Program

Only a state permit would be needed in assumable waters (85% of all permits).

EPA is working with the Services on a new method for federal ESA compliance; formal Section 7 can not be used since there is no federal nexus.

An assumed program would also maintain protections without the need for extra federal processing steps:◦ State water quality standards ◦ Coastal Zone Management consistency◦ Cultural and historic resources compliance

Some of the Key Features

Waters subject to ebb & flow of tide (incl. ocean).

Waters currently used for interstate/foreign commerce.

Waters susceptible to use for interstate/foreign commerce (in natural condition or w/reasonable improvement).

Wetlands adjacent to 1-3, above.

Four Categories of Non-Assumable Waters

Assumption must tangibly streamline permitting process for stakeholders

Assumption must maintain current levels of resource protection

DSL must have the resources available to deliver the new process

There must be political support in order to pass the State Legislature.

DSL’s Conditions of Assumption

Oregon’s Non-Assumable Waters

Activities in Assumable Waters

Activity Type # % of TotalAccess Dredging 25 3%Boat Ramp 30 3%Bridge 36 4%Channel Relocation 22 2%Culvert 35 4%Dam 40 5%Dock 15 2%Erosion Control 51 6%Fill 142 16%Fish Habitat 25 3%Other 98 11%Pipeline 44 5%Removal 28 3%Removal/Fill 292 33%

883 100%

Activity Type # % of TotalBoat House/Ramp 10 1%Bridge 196 18%Culvert 92 8%Dock 21 2%Erosion Control 165 15%Fill 244 22%Fish Habitat 173 16%Minimal Disturbance 73 7%Other 33 3%Piling 7 1%Removal/Fill 84 8%Wetland Enhancement 3 0%

1101 100%

Individual Permits General Authorization

Schedule for Assumption

Pre-Application Work with EPA- January-

October 2012

Refine Operational Aspects

Final App to

EPA (Dec

2012)

Draft App to EPA

Elements of State Application to EPA:• Governor’s Letter• Program Description• Program Documents • Corps MOA • EPA MOA• Equivalency Analysis by DOJ

Application Process:

Legislative Process:

Legis-lative

Counsel (06/12)

Legis-lative

Concept

DASRevis-ions

07/12

Gov. Pre-

session file

(12/12)

Bill Intro-duced (01/13)

Legis-lative

Process

Bill Passed(06/13)

404 Assumption Committee Overview 31 January Assumable Waters & Process 1 March Equivalency & Assumable Waters 5 April Michigan Program 3 May

Stakeholder Outreach Development 21 June Environ, Mining & Assoc. 7 June Ports 19 April Agriculture 4 April & 21 May

Stakeholder Outreach-2012

Concern over whether some Corps practices and/or agreements would be maintained including previously issued permits, nationwide permit conditions, and mitigation requirements and programs.

Concern regarding Section 7 consultation and 3rd party lawsuits. The Development community would like the option to consult with the Services if they chose to since Section 7 now affords the applicant some protection from 3rd party suits.

Will fees increase for state 404 permits?

What about moving Removal-Fill program to DEQ?

Development Community

The aggregate community would like a more integrated approach to consolidated permitting (including the 404 assumption) investigated at the Governor’s level.

How many water permits do we need? The aggregate community would like local land use

laws to play a minor role to State law; “local preemption.” Locals can not exceed state requirements.

Several bills are being drafted for 2013 session.

Aggregate Mining

Concern regarding how exemptions will be affected by assumption. Specifically, the agriculture community would like to know if the State will create a GA or GP to cover the current 50 cubic yard exemption?

Concern that a State assumed program will become more restrictive then it is currently. If so, will this mean increased costs to applicants for application fees, wetland delineations, and mitigation?

Agriculture

Under a state assumed program, the AOC would like a more streamlined process for counties.

The AOC would like existing programmatic ESA agreements with NMFS (e.g., the Blue Book for maintenance activities) incorporated into the 404 assumption compliance Memorandum of Agreement.

The AOC likes the idea of defining state agency roles explicitly in writing (e.g., MOAs).

How will DSL ensure that applicants know if they need a Corps or DSL permit? Will this lengthen the existing timeline for permit review?

How is DSL currently meeting the goals of the State Removal-Fill law and how will those goals would be furthered by assumption?

Associations (e.g. AOC)

Most ports will be in non-assumable waters. There was concern over continued state regulation in non-assumable waters.

If the state continues to regulate in non-assumable waters, OPPA would like a state general permit with standardized conditions created for work in ports.

Ports

Want to step back and ask, “What is the basic objective of 404 and wetland permits? What is the best way to go about it?

Removing DSL from non-assumable waters; too heavy a lift for 2013 session. If DSL got out, would Corps regulate removal?

Want to maintain CWA Citizen Suit provisions. ◦ [New] Does not change under 404 assumption per DOJ letter

dated 20 June 2012. Never used in Oregon for 404.

How would Removal-Fill program be funded if moved to DEQ? Should not be 100% fee supported.

Environmental Groups

Proposal for Defining “Assumable” Waters Submitted to Corps on 4/11/12.

Legislative Concept Submitted to Legislative Counsel: 5/1/12

State/Federal Programmatic Crosswalk Submitted to EPA for review: 6/18/12

Legislative Concept Amendments submitted to DAS: 7/12/12

On-going meetings regarding and other state agency concerns

Status of Assumption Effort

Operative Upon Assumption—three categories:

2001 Package of Amendments Amendments Required by EPA During Earlier Study of Assumption

Amendments Since 2001 Amendments Needed to Obtain EPA Approval of an Amended

Program

Amendments Proposed for 2013 Session Operative Date Based on a Letter From DSL to the Legislative

Assembly Amendments Required by EPA Amendments Needed to Facilitate Administration of the Program

Statutory Changes

Formal consultation under §106 of the NHPA not required for permits under an assumed program.

EPA has obligation to consult with tribal interests to ensure interests and concerns are addressed during the development of an assumed program.

DSL is currently developing a gap analysis to identify regulatory and procedural gaps related to cultural resources.

Maintaining Protection of Oregon’s Cultural Resources

Formal consultation under §7 of the ESA not required for permit actions in an assumed program.

EPA still required to affirm that no state permit is likely to affect listed species or their critical habitat.

DSL and EPA are working with the Services to explore alternative avenues for ESA coordination

Maintaining Protection of Federally Listed Species

In developing an assumed program, DSL is committed to maintaining equivalent protection for Oregon’s cultural and natural resources

The protective mechanisms developed will differ from the existing federal consultation under ESA or NHPA.

DSL will not peruse an assumed program if these new mechanisms reduce the overall protection to resources.

Maintaining Equivalent Protection of Oregon’s Resources

Questions