State of Minnesota Section 404 Assumption Feasibility Study Minnesota Laws 2015 Special Session Chapter 4, Section 137

Today’s Agenda – March 18, 2016 Report on meeting with USEPA staff Review and input on Plan of Study Information on fiscal analysis (Steve Taff) Next steps

Plan of Study – Intro/Background General concept of state assumption History/Previous Assumption Studies Frame the problem Interests/Goals/Concerns of stakeholders

Plan of Study -- Required Elements (1) Federal requirements for state assumption 40 CFR § 233 Comprehensive jurisdiction and regulation State agency administration (vs. local govs.) Indian lands and Tribal authorities Application process/materials Changes to state regulations trigger federal review Public noticing of permit applications Federal review of permit applications Enforcement Annual report to USEPA

Plan of Study -- Required Elements (2) the potential extent of assumption, including those waters that would remain under the jurisdiction of the United States Army Corps of Engineers due to the prohibition of 404 assumption in certain waters as defined in section 404(g)(1) of the federal Clean Water Act; Describe lack of clarity in federal regulations – FACA Committee Describe potential scenarios

Plan of Study -- Required Elements (3) differences in waters regulated under Minnesota laws compared to waters of the United States, including complications and potential solutions to address the current uncertainties relating to determining waters of the United States; Describe current status of WOTUS definition Compare “waters of the state” to WOTUS definition currently in effect and under proposed new federal rule Discuss implications for state assumption – mostly relates to permit applications requiring EPA coordination

Plan of Study -- Required Elements (4) Measures to ensure protection of aquatic resources consistent with the Clean Water Act, Wetland Conservation Act, and the public waters program administered by the Department of Natural Resources; Compare state and federal regulations – sequencing, replacement requirements, performance standards, etc.

Plan of Study -- Required Elements (5) Changes needed to existing state law, including changes to current implementation structure and processes, that would need to occur to allow for state assumption of the 404 program WCA structure Certain WCA exemptions WCA/Public Water Permit notification procedures/timelines

Plan of Study -- Required Elements (6) New agency responsibilities for implementing federal requirements and procedures that would become the obligation of the state under assumption, including the staff and resources needed for implementation; Account for required changes in state regulatory program structure

Plan of Study -- Required Elements (7) Estimated costs and savings that would accrue to affected units of government; Account for required changes in state regulatory program structure May analyze potential fiscal implications for permit applicants

Plan of Study -- Required Elements (8) Effect on application review process and time frames Analysis of recent state/federal permitting times Under assumption: Applications requiring EPA coordination vs. those that don’t

Plan of Study -- Required Elements (9) Alternatives to assumption that would also achieve the goals of regulatory simplification, efficiency, and reduced permitting times Programmatic general permits Regional general permits/nationwide permits/letters of permission WCA federal approvals exemption Example: Utilities Interagency coordination/agreements, etc.

Plan of Study -- Required Elements (10) Options for financing additional costs Permit fees Legislative appropriations Reallocation of existing program funds (per restructuring requirements)

Plan of Study -- Required Elements (11) Other information as determined by the board and commissioner Experiences of other states Benefits, disadvantages, barriers to assumption Recommendations from state agencies ??