August 2, 2012

 404 Assumption Review  Project Schedule Review  Summary of Stakeholder Outreach Meetings  Status of Assumption Effort  Statutory Changes  Maintaining Resource Protection

 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.

 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

 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

 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.

 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.

Individual PermitsGeneral Authorization

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 DAS Revis- ions 07/12 Revis- ions 07/12 Gov. Pre- session file (12/12) Bill Intro- duced (01/13) Legis- lative Process Bill Passed (06/13) Bill Passed (06/13)

 404 Assumption Committee  Overview31 January  Assumable Waters & Process1 March  Equivalency & Assumable Waters5 April  Michigan Program3 May  Stakeholder Outreach  Development21 June  Environ, Mining & Assoc.7 June  Ports19 April  Agriculture 4 April & 21 May

 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?

 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.

 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?

 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?

 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.

 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 Never used in Oregon for 404.  How would Removal-Fill program be funded if moved to DEQ? Should not be 100% fee supported.

 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

 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

 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.

 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

 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.