Regulatory Program Updates

1. Regulatory Program Updates • Mitigation – Federal requirements increased • WRDA 214 – permanent authority remains our common goal • Appeals – DE’s decisions under review • Regional Interagency agreement • Marci Cook will address sediment (SEF/RSET) issues

2. New Mitigation Rule • Why it was Developed? • Mitigation practices varied among Districts • Interagency teams were not always decisive • Existing guidance was non-binding • What does it do? • Consolidates and clarifies prior ‘guidance’ • Provides more mitigation opportunities for permittees • Levels the playing field among mitigation providers • Retains sequencing – avoid, minimize, compensate • Promotes consistency, predictability & accountability

3. General Principles • Does not change when mitigation is required • Does change where and how • Self-sustaining aquatic resources to replace lost functions in the watershed are achieved • Responsibility for mitigation transferred from permittee to sponsors (banks/ILF) • Corps has the final decision on all: • Approval of banks or ILF programs • Mitigation for Dept of Army permits

4. Mitigation Process • To create a new bank or In-Lieu Fee program • Sponsor submits prospectus to the Corps for approval • Public Notice and comment process • Interagency review, w/dispute resolution process if needed • Instrument is vetted and approved • Rule establishes timeframes for DE’s decisions to approve mitigation sponsor Extensions to timeframes may occur (e.g., ESA or Tribal consultations)

5. Mitigation Process… • Mitigation instruments in process today must be approved by a Commander by July 9th or sponsor needs to start over adhering to new process • Corps approval is needed to release credits to sponsors • Corps approval is needed to utilize credits for meeting compensation requirements of DA permits

6. Benefits of the Mitigation Rule • Improved mitigation performance • Increased efficiency in instrument approval process • Streamlines permit process thru preference for existing approved mitigation sources • Strongly encourages watershed approach • Formalizes procedures and Federal policy for mitigation (may differ from States)

7. WRDA 214 • Section 214 of the Water Resources Development Act of 2000 allows non-Federal public entities to provide funds to expedite permit processing • WRDA 2007 extended expiration to Dec 2009 • Nationally 37 entities fund 48 positions in 15 Districts • Allows districts to be more responsive to all customers

8. WRDA 214 • DEs are authorized to accept & expend funds contributed by non-Federal public entities • Public Notice & comment process used • DE’s basis is compliant with the Act • Accountability of usage of these funds is tracked up to the Army level • Several Ports have such agreements (Seattle, Tacoma and Vancouver) • Permanent authority being sought by Army

9. Port Issues • Administrative Appeals – 5 now in NWD • Port of Arlington has appealed permit denial by Portland District • NWD reviewing 14 reasons presented in the Request For Appeal • Planning on conference this month • NWD Commander is decision-maker • Options are to remand to district or uphold

10. Interagency issues • Corps, EPA, Fish & Wildlife & NOAA Fisheries met with PNWA in Oct 2007 • Renewed commitment made verbally • Improving Sediment review process a priority • Making the new Mitigation and Jurisdictional processes efficient and effective also a priority • Elevation of issues to region always an option • Next Steps • Finalize revised agreement by July 2008 • Organize working session on improving SEF • Continue the dialogue

11. Questions? • Regulatory Program Regional POC is Karen Kochenbach, 503-808-3888 or karen.a.kochenbach@usace.army.mil • Mitigation - Regional Subject Matter Expert is Ms. Corrie Veenstra at Portland District, 503-808-4378 • Check the Web for details at www.nwd.usace.army.mil/et/reg/home