Oregon Department of Transportation Stormwater Management Initiative: Meeting New Challenges Presented by: William Fletcher, ODOT February 5, 2008

Water Quality Storm Cloud

Overview of Water Quality Issues  Regulation of stormwater is a state- wide and national issue  Development is causing more degradation of in-stream habitat  Copper at very low concentrations harms salmon  The Endangered Species Act has become the most stringent regulatory driver

Problem Statement Stormwater has become a major impediment to efficient ESA consultation process due to:  Changing criteria for effect determinations in ESA Section 7 consultations  Extension of the “action area” from the point of discharge to the sea

Effect Determinations  ODOT has based effect determinations on the change between pre-project and post project conditions

Effect Determinations  NMFS is basing Effect Determinations on the quality of the stormwater at the point of discharge

Current ODOT Action Area Definition  2-miles downstream from point of discharge  Rationale: Pollutant load and concentration reduced by sedimentation and dilution Action Area

NMFS Proposed Action Area Definition  From point of discharge to the ocean  Rationale: Dissolved pollutants stay in water column for length of fluvial system

Impact to ODOT’s Program  The expansion of the Action Area would require consultation for projects in large areas of Regions 4 and 5 that have never had to consult with NMFS before

Impact to ODOT’s Program  Increased project development costs and timelines to deal with additional consultations  Overwhelming of NMFS’ ability to process consultations  Potential for project deadlock if adversarial relationship develops between ODOT and NMFS

Impact to ODOT’s Program Nightmare Scenario  Required numeric standards  Monitoring to demonstrate compliance  Potential remediation requirements  Consultation gridlock

ODOT’s Goals Develop a streamlined stormwater treatment program to: Develop a streamlined stormwater treatment program to:  Provide ODOT and FHWA with certainty regarding scope, schedule, and budget  Meet all regulatory needs  Streamline the permitting process  Result in an overall environmental benefit and promote species recovery

Solution Strategy All solutions must be PermitableConstructibleMaintainable

Solution Strategy Collaborative approach that includes all of the interested parties –ODOT - USFWS –NMFS - ODFW –FHWA - EPA –DEQ

Solution Strategy Internal ODOT Participation  ODOT Environmental and Hydraulics Technical staff,  ODOT Office of Maintenance  ODOT Environmental Leadership Team, Technical Leadership Team, and Area Managers Team

Solution Strategy Twin tracks:  Technical: Develop the process and tools for effectively managing stormwater quality  Regulatory: Streamline the ESA consultation process

Strategy for Solutions: Technical  Clarify ODOT’s process for addressing stormwater management  Develop tools to select the most effective treatment for individual projects  Select design storms based on science

Strategy for Solutions: Regulatory  Articulation and clarification of Effect Determination criteria and thresholds  Develop tools for streamlined permitting: –Pilot projects to use the technical products in consultation –Programmatic approaches to consultation on stormwater issues

Effects Determinations  Agree that copper causes sublethal effects to listed salmonids  NMFS develops guidelines for Effects Determinations based on project elements and stormwater management Strategy for Solutions: Regulatory

Permitting Streamlining  Agree that if “effective” BMPs are used then stormwater has been treated to maximum extent feasible  Include Design Storms and Preferred BMPs in SLOPES IV  Explore ESA Programmatic with FHWA as Action Agency

Status: Technical  Project Development Process –Planning for stormwater management early in project development –Incorporate Low Impact Development techniques whenever feasible

Status: Technical  BMP Summary Reports Completed  BMP Selection Tool in development –Draft rating of BMP effectiveness –Preferred BMPs identified  BMP Selection Tool Users’ Guide to be developed

Status: Technical  Water Quality Design Storm has received preliminary acceptance  Flow Control Design Storm has an accepted upper limit, and lower limit is nearing acceptance

Status: Regulatory  Agreement that if “effective” BMPs are used, then stormwater has been treated to maximum extent feasible  We will not be held to numerical standards for ESA purposes

Status: Regulatory  NMFS has provided written guidance for effect determinations  NMFS has presented a draft guidance on stormwater effects action area  Pilot projects selected, with active work on one in Region 1  Proposal for a Stormwater Programmatic rejected

Status: Regulatory  SLOPES IV, incorporating the use of Preferred BMPs, and the Design Storms, has been reviewed by ODOT  Determined that for non-SLOPES projects, stormwater analysis and conditions can be inserted into consultations via “incorporation by reference”

Next Steps  Investigate desirability of developing a “SLOPES” with FHWA as the Action Agency  Reassess usefulness of a stormwater programmatic  Develop alternative “action area” definition

Next Steps Watershed Approach  Trading or banking of credits for small projects or projects that cannot meet water quality treatment goals  Mitigation for residual adverse effects from permitted projects

Definition of Success  When guidance is approved by regulatory partners  When tools and guidance are in use by project teams  When stormwater is no longer a contentious issue

Definition of Success Anticipated Benefits for ODOT  Stormwater solutions appropriate for the project  Certainty in project development and construction  Reduction in project delays  Support ODOT’s sustainability goals

Definition of Success Anticipated Benefits for Regulatory Agencies  Meet regulatory requirements  Well-defined terms and conditions that allow for flexibility in application  Protect ESA-listed fish  Protect Oregon’s water quality and wetland resources

Questions?