Analysis of Retained and Assumable Waters in Minnesota A Supplement to the January 17, 2017 MN Federal Clean Water Act Section 404 Permit Program Feasibility Study Report to the Legislature February 7, 2018 Presentation of Draft Results 1 Primary Discussion Topics 1) Background and Refresher 2) Development of Mapping Criteria 3) Results of Analysis and Current Status 4) Implications and Next Steps 1
The Board of Water and Soil Resources and the commissioner of natural resources shall study the feasibility of the state assuming administration of the section 404 permit program of the federal Clean Water Act. Minnesota Laws 2015 Special Session, Chapter 4, Section 137 Process (Nov. 2015 Jan. 2017) Project Management Team: DNR, BWSR, PCA staff Stakeholders: Core Study Group 16 members General stakeholder coordination more than 39 organizations Federal Agencies and Tribes BWSR Board/DNR Commissioner s Office/MPCA Commissioner s office 2
Final Report submitted to Legislature 1-17-17. Available on BWSR website: www.bwsr.state.mn.us Key Findings: Permitting Faster permit decisions Improved permitting efficiency Cost savings to applicants 3
Key Findings: Implementation Federal regulations: Assumed program must be administered by a state agency or agencies. 1) Primary WCA responsibilities would shift from local governments to the state. 2) A shared state-local implementation framework could likely be developed. Changes to state statute and rule would be necessary: expanded jurisdiction, exemptions, noticing. Key Findings: Costs State costs would increase (between $3.5M and $4.8M annually) due to shifts in permitting authority. Local governments should realize savings (between $2.3M and $4.1M annually). Overall, non-federal costs would increase due to the requirement to expand State regulatory program authorities. 4
Overall, for Minnesota: Benefits: Faster permitting for some projects. Single permit instead of two (or three). Cost savings for applicants. Disadvantages: Increased cost to state government. Some substantial program revisions requiring changes to statutes and rules. BUT Key Findings: Assumable Waters Certain waters/wetlands must remain under Corps regulation (and are not assumable by the State). These waters are referred to as Retained Waters. Differing interpretations of federal statute and lack of clear federal guidance. Further evaluation of Corps position needed to assess potential benefits of 404 assumption. January 25, 2017 letter from Corps (St. Paul District) outlining which waters/wetlands they would retain. 5
BWSR Board Resolution (Jan. 2017) 1. State agencies work with COE to estimate assumable and retained waters prepare report. 2. If relatively few waters are assumable, don t proceed with assumption until something changes. 3. If a significant proportion of waters are assumable, agencies consider all relevant factors and make recommendation to legislature. If go : a) Seek funding to develop application b) Work with EPA to ID specific changes c) Develop MOU with COE to ID specific retained waters Federal Statute Retained Waters Clean Water Act Section 404(g)(1): 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... 6
EPA Regulations Retained Waters A complete application to the EPA for Section 404 assumption must include an MOA between the State and the COE. Per 40 CFR 233.14(b)(1), the MOA shall include: A description of waters of the United States within the State over which the Secretary retains jurisdiction, as identified by the Secretary. Purpose of Analysis The purpose of this analysis and report: is to estimate and map what the COE has described, in order to aid in the State s decision-making process regarding the potential pursuit of Section 404 assumption. is not to debate interpretations of Federal Statute, as the authority to identify retained waters currently lies with the COE. 7
1-25-17 COE Description of Retained Waters 1) Navigable-in-fact waters regulated under Section 10 of the Rivers and Harbors Act. 2) Other Traditionally Navigable Waters* (TNWs), identified programmatically or determined on a case-by-case basis. 3) Wetlands adjacent to each of the above, using the current COE regulatory definition, applied on a case-by-case, fact specific basis. Unless the sole basis for jurisdiction is historic use in interstate or foreign commerce. Mapping Analysis BWSR worked with the COE to develop specific criteria that could be used to estimate and map (GIS) the waters described in the 1-25-17 COE letter. The analysis was completed in series due to the jurisdictional relationships between wetlands and other waters under the CWA. The GIS mapping analysis was conducted by MNIT using the jointly developed criteria. 8
Sequential Steps of Analysis Identify: 1) Non-Wetland Waters Retained by the COE. 2) Adjacent Wetlands Retained by the COE. 3) Section 404 Jurisdictional Non-Wetland Waters Assumable by the State. 4) Section 404 Jurisdictional Adjacent Wetlands Assumable by the State. Mapping Criteria Part I. ID of Non-Wetland Waters Retained by the COE. Waters meeting any of the following criteria would likely be determined to be TNWs by the COE: 1) All waters subject to State PWPP jurisdiction, excluding PWWs and first and second order streams. 2) Non-wetland waters not identified under #1 above that meet the following criteria: Lakes larger than 5 acres that are bordering public land, have public access, or are within 100 ft of a public road; and Rivers or streams that are third order or higher (including ditches and altered watercourses). 9
Mapping Criteria Part II. ID of Adjacent Wetlands Retained by the COE. Any of the following are likely to be determined to be adjacent wetlands and retained by the COE: 1) Wetlands with a border at any point within 100 ft of a TNW as identified in Part I (other than rivers or streams); 2) Wetlands that at any point are within a specified distance from the centerline of a stream (varies by stream order); 3) Wetlands having an unbroken mapped wetland connection to a TNW as identified in Part I. 4) Wetlands that are separated by a linear man-made or artificial barrier where one of the wetlands has been determined to be adjacent under 1, 2, or 3 above. Mapping Criteria Part III. ID of Section 404 Jurisdictional Non-Wetland Waters Assumable by the State. 1) All first and second order streams and rivers except those that were identified as a TNW in Part I. 2) All remaining non-wetland waters not identified as a TNW in Part I that are intersected by a non-wetland water that eventually flows to a TNW identified in Part I. 10
Mapping Criteria Part IV. ID of Section 404 Jurisdictional Adjacent Wetlands Assumable by the State. 1) Wetlands with a border at any point within 50 ft of an assumable non-wetland water identified in Part III. 2) Wetlands that have an unbroken, mapped connection to an assumable non-wetland water identified in Part III. 3) Wetlands separated by a linear man-made or artificial barrier where one of the wetlands has been determined to be adjacent to an assumable non-wetland water. 4) Any wetland identified as adjacent to a TNW in Part II is excluded from consideration under this Part. Primary Data Sources DNR Public Waters Basins and Watercourse Delineations. DNR Stream Routes with Strahler Stream Order. DNR GAP Stewardship, 2008. DNR Public Water Access Sites in MN. National Wetlands Inventory, MN, 1980-1986. 11
Mapping Limitations There are substantial limitations in using geospatial data layers to map resources to the level of specificity and certainty necessary to determine their status based on the COE letter. Potential errors in original GIS data layers. Limitations in the ability to interpret hydrology and recognize hydrologic connections. Adjacency, in many situations, cannot be determined for jurisdictional purposes solely using GIS data. The COE has indicated that such a map should not represent any conclusions and can only be used to show one possible estimate of assumable waters. Mapping Analysis Results Relative statewide proportions of COE-retained and State-assumable waters: Type of Water % COE- % State- Retained Assumable Wetlands (acres) 91.5% 8.5% Lakes/Basins (acres) 98.7% 1.3% Streams (miles) 12.0% 88.0% 12
Lakes and Non- Wetland Basins Streams and Rivers 13
Wetlands Wetlands by Watershed Fewest assumable wetlands in NE. With the exception of 3 outliers, watersheds range from 0% to 45% assumable. Substantial majority are <25% assumable. 14
Wetlands by Land Ownership NE MN contains more public land. Public land may contain a higher proportion of wetlands. Permitting activity will generally be less on public land. NW Minnesota 15
North- Central Minnesota NE Minnesota 16
West- Central Minnesota Central Minnesota 17
East-Central Minnesota SW Minnesota 18
South- Central Minnesota SE Minnesota 19
Twin-Cities Metro Area COE Permitting Analysis The proportion of waters that are assumable may not directly correlate with permitting activity. The 1-25-17 BWSR Resolution directs staff to compare the location of COE-permitted projects with the location and extent of assumable waters. Section 404 permitting data from 2012 to 2016 was obtained from the COE for this comparison. 20
COE Permit Location Comparison COE Permit Location Number Percent Falling within a COE-Retained Water 1,022 18.9% Falling within a State-Assumable Water 141 2.6% Falling within a State-Only Water 194 3.6% Falling Outside a Mapped Water 4,056 74.9% COE Permit Location Comparison Permits falling outside a mapped water do not suggest the permit was issued for activities in upland. Rather, likely sources of error could include: Permit location was not collected with sufficient accuracy. Impact location was marked as the center of a linear project. Mapping layers are not sufficiently accurate delineations of wetlands/waterbodies. Incorrect data entry. 21
COE Permit by Closest Proximity Permit locations falling outside a mapped water were assigned to the closest mapped water. COE Permit Location Proximity Number Percent Within or Closest to a COE-Retained Water 3,112 57.5% Wihtin or Closest to a State-Assumable Water 1,204 22.2% Within or Closest to a State-Only Water 1,097 20.3% This analysis assumes that the nearest mapped water to the mapped permit location is the water that was in-fact affected by the permit activity and that may not be the case. COE Permits by Major Watershed COE permits can be compared to assumable wetlands by watershed. Wetlands were chosen as they are typically affected by permitted activities more so than lakes or streams. 22
The Number of COE Permits Compared to Assumable Wetlands for the Watersheds with the Highest Permit Density Major Watershed ID # Number of COE Permits Percent Assumable Wetlands 20 385 19% 3 314 4% 33 295 28% 7 182 5% 12 166 12% 10 161 10% 21 158 20% 18 151 24% 15 146 29% 17 128 31% 2 119 22% 1 107 12% 56 105 10% Permitting Analysis Conclusions Due to data limitations, none of the analyses yielded definitive conclusions. However, the observed results (particularly of the watershed comparison) suggest there is unlikely to be a dramatic difference between the amount of Stateassumable permitting activity and the amount of assumable waters, particularly on private lands. 23
Implementation The process by which a water s status is identified is equally important as the amount of assumable waters. Section 404 assumption goals of simplification and efficiency are affected by: 1) The ability to identify COE-retained and Stateassumable waters. 2) The distribution of COE-retained and State- Assumable waters. Identification Procedures The Feasibility Study concluded improved permitting timeframes for many projects under assumption. This conclusion presumed a known set of COEretained waters, which currently may not be possible. While some waters could be identified programmatically, other waters (particularly wetlands) would often require a case-by-case analysis to determine which agency has authority over a project. 24
Identification Procedures A case-by-case identification would likely be similar to the Section 404 Jurisdictional Determination process. For projects affecting wetlands, it would involve two steps: 1) Whether the wetland is considered adjacent to a non-wetland water(s). 2) Whether that water, or any of the waters it is adjacent to if multiple, is retained by the COE. Distribution of Waters and Regulatory Responsibilities The distribution of waters described in the COE letter creates a complicated patchwork of fragmented regulatory authorities. Wetlands adjacent to 2 or more water bodies are retained by the COE if any of the water bodies are retained. In some cases a stream could be assumed by the State, while its adjacent wetlands are retained by the COE. 25
Patchwork Example Patchwork Example 26
Effects of Implementation Process on Potential Section 404 Assumption 1) The status of some waters could be known or determined relatively easily. 2) Others, particularly wetlands, would not be known at the time of an application, requiring a case-by-case evaluation. Modifications to the mapping criteria could change the amount of COE-retained waters, but not the process to identify them under the COE letter. Process adds complexity and uncertainty, diminishing the benefits of assumption to landowners and the State. 27
Assumable Waters Subcommittee Recommendations to EPA 1) COE-retained waters = Section 10 waters.* 2) COE-retained wetlands = wetlands within a set distance (e.g. 300 ft) from a retained water. *Except for those listed solely for historic use. Assumable Waters Subcommittee Recommendations would provide clarity and allow for: 1. A reasonable amount of waters to assume. 2. A known status of waters, identified and mapped programmatically. Federal government would need to take action to implement the recommendations. They would significantly improve the feasibility of Section 404 assumption in MN. 28
Overall Results & Conclusions A substantial majority of stream miles are assumable, while a substantial majority of lakes/basins and wetlands are retained. The COE has indicated that the results are not a very realistic estimation of the scope of retained waters or permit activity. State staff are unsure what steps could be done to produce a more realistic map. The process would often rely on case-by-case determinations, which could diminish potential gains in efficiency from 404 assumption. Implications for 404 Assumption in MN If two of the State s goals for assumption are to: 1) reduce redundancy by assuming most waters and permitting authority, and 2) improve efficiency of the process, then these results are not favorable for assumption. However, given the uncertainties associated with the results, it remains difficult to make a fully informed decision at this time. 29
BWSR, DNR, and PCA Letter to COE Requesting Identification of Retained Waters On 2-2-18, the agencies sent a letter to the COE to begin the process of preparing an MOA by: requesting the St. Paul District, in accordance with 40 CFR 233.14(b)(1), specifically identify the waters that would be retained by the Corps under Section 404 assumption in Minnesota. Greater certainty is needed for a State decision. The COE has the sole authority and necessary expertise to ID retained waters according to current regulations and interpretations. Next Steps 1. Finalize and post this report. 2. Support and cooperate with the Corps regarding the ID of retained waters. 3. Support Assumable Waters Subcommittee majority recommendations to clarify the ID of retained waters. 4. Begin coordination with EPA* to further identify: Specific state statute/rule changes. General framework of MOA. To gain a fuller understanding of the specific steps that would be necessary if the State were to pursue assumption. 30
Visit the BWSR website to review the original report and the Assumable Waters Analysis when posted. www.bwsr.state.mn.us/wetlands/index.html Questions? http://www.bwsr.state.mn.us/wetlands/index.html 62 31