WHATS ASSUMABLE? DSL PROPOSAL MAY 9, 2012 Defining Assumable - PowerPoint PPT Presentation

WHAT’S ASSUMABLE? DSL PROPOSAL MAY 9, 2012 Defining Assumable Waters for 404 Assumption in Oregon

Who Gets to Decide? You.  Offer a fully-formed proposal as best approach for starting conversation.  Use CWA, Section 404 (g)(1) as foundation for State’s proposal.  Outcome is codified in MOA between DSL and Corps. Goal: Define non-assumable waters in a way that minimizes case-by- case determinations and maximizes applicant’s ability to self-identify need for a 404 permit using web tools.

CWA 404 (g) (1) The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto), within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program.

Breaking That Down…  Non-assumable waters include: Waters subject to ebb & flow of tide (incl. ocean) 1. Waters currently used for interstate/foreign 2. commerce Waters susceptible to use for interstate/foreign 3. commerce (in natural condition or w/reasonable improvement) Wetlands adjacent to 1-3, above. 4.

1. Waters Subject to Ebb/Flow of Tide Proposal:  Length: Up to the head of tide  DSL heads of tide survey, 1989 - OR -  Point where the waterway exits a mapped (Scranton 2005) tidal wetland  Whichever is further upstream.  Use direct observation for lower Columbia R. tributaries unless Corps has mapped the reach of tide in those lower tribs.

The Proposal

Non Assumable Water Type per Limit Proposed Data Source for Defining 404 (g)(1) the Limit Waters subject to the ebb and flow Length: head of tide Tidal waterway up to the mapped of tide (incl. Pacific Ocean) head of tide (“ Heads of Tide for Coastal Streams in Oregon ”, DSL, March 1989) - OR - Point where the waterway exits mapped Tidal Wetland area (Adamus, Larsen, Scranton, 2005 ) Whichever is further upstream. (Datasets do not extend to tidal tributaries of the lower Columbia River, therefore, direct observation of tidal influence will be the determinant here.) Elevation: Mean higher high water DLCD mapping of MHHW elevation (MHHW) line where available. Otherwise use standard tools to identify MHHW: • Nearest tidal station data • On-site tidal gage • Field indicators

Waters currently used Length: federally “Navigable Riverways Within the for interstate/foreign established navigational State of Oregon” and “Navigable commerce limit Harbors and Bays Within the State of Oregon”, US Army Corps of Engineers, October 1993; and as interpreted by DSL mapping, 2012 Elevation: Ordinary high DLCD mapping of MHHW water line (inland) or elevation where available. mean higher high water Otherwise use standard tools to line (tidal) identify MHHW: • Local gage/tidal station data • Field indicators • Corps published OHW elevations for Columbia R. and Willamette R.

Waters susceptible to To be determined as such waters may be identified by the Corps in use interstate/foreign future. commerce (either in natural condition or w/reasonable improvement) Wetlands adjacent to Coastal areas: Tidally- Mapped Tidal Wetlands (Adamus, Larsen, Scranton, 2005 ) 1 tidal and navigable influenced wetlands waters (Dataset does not extend to lower Columbia River or its tidal tributaries, therefore, use 1,000 foot buffer) Inland areas: Activity 1,000 foot buffer parallel to the ordinary high in wetlands within water line of the mainstem of the navigable 1,000 feet of the waterway. ordinary high water line of the navigable waterway(similar to New Jersey’s agreement with New York District)

1. Waters Subject to Ebb/Flow of Tide Proposal:  Elevation: Mean higher high water (MHHW) line  DLCD mapping when available  Standard tools elsewhere:  Tidal station data  On-site tidal gage  Field indicators

New Jersey MOA with Corps North Atlantic District  404(g)(1) is quoted verbatim  “Adjacent wetlands” defined as: wetlands partially or totally within 1,000 feet of OHW or MHW. Line drawn parallel with the river/waterbody.  Tidal waters are defined using head of tide maps.  Non-assumed waters specifically identified as:  Full length of Delaware R.  Tidal water bodies to the head of tide  Greenwood Lake  Any waterway served by an existing or proposed federal navigation project – Corps district to provide list of those projects and updates as necessary  Modification process identified for future navigability determinations by fed.

Michigan MOA with Corps North Central District  404(g)(1) is quoted verbatim.  Reference to appendix for list of navigable waters  Waterways in the appendix are specified as “navigable throughout” or from mouth to a specified point.  List additionally states that “All federal navigation projects are navigable waters of the U.S. to upstream and/or landward limit of project”.

2. Waters Currently Used for Interstate or Foreign Commerce – Proposal:  Corps Portland District published 1993 list of navigable waters  Assume list is “currently” navigable waters unless Corps will identify and remove historically navigable waters  124 waterways = 1,470 miles (excl. ocean); 50% of that is Columbia + Willamette + Snake  DSL has mapped these waters.

3. Waters Susceptible to Use for Interstate or Foreign Commerce  Unclear if Portland District’s 1993 list of navigable waters includes “susceptible” waters.  How should we handle this? Acknowledge that it is a non-assumable water type and add to the non- assumable list if or as the Portland District may chose to identify “susceptible” waters.

4. Adjacent Wetlands – Proposal:  Wetlands Adjacent to Tidal Waters: Use mapped tidal wetlands (Scranton, 2005)  Highly defensible  Well defined for coastal region  Wetlands Adjacent to Non-tidal Waters: 1,000 foot buffer parallel to ordinary high water line of navigable waterway.  Discharges within the buffer would be regulated by Corps.  Easily identified/mapped.  Precedent established by New Jersey.  EPA guidance does allow for using fixed distance as means to define “adjacency”.  Justifiable considering general morphology of Willamette River valley wetlands.