HB 2436 – Easing Barriers to Development Inside Urban Growth Boundaries and for Mining Activities: Under Section 404 of the federal Clean Water Act (CWA), states are authorized to assume jurisdiction for activities within wetlands. Unfortunately, since the CWA was enacted in 1972, only two states (New Jersey and Michigan) have undertaken “404 Assumption” from the United States Environmental Agency (EPA) and the Army Corps of Engineers (Corps).
The reason that most states have not undertaken 404 Assumption from the EPA and Corps is due to 1) the size and scope of undertaking all of the federal government’s duties under Section 404, something that most states are incapable of doing, and 2) reluctance by the federal bureaucracy to relinquish control over their authority, despite a clear directive by Congress. Successive administrations from both parties have never pushed EPA and the Corps to work with states to prioritize 404 Assumption, leaving states with the option of dealing with a hostile federal bureaucracy. That all changed with the election of President Trump.
The Trump administration has directed both the EPA and Corps to undertake steps to encourage states to undertake 404 Assumption. Unfortunately, most states do not have agencies that are capable of undertaking full 404 Assumption. Recently, however, a number of states, including Oregon, have approached the EPA and Corps seeking partial assumption, where the state would assume some of the EPA and Corps jurisdiction, leaving the remainder to the federal agencies. That is precisely what HB 2436 does.
HB 2436 directs the Oregon Department of State Lands (DSL), the state agency that is charged with wetlands removal/fill authority, to work with the EPA and Corps on a program of partial 404 assumption, where DSL would assume jurisdiction from the federal agencies for all wetland removal/fill activities relating to 1) development inside urban growth boundaries, and 2) any mining activities. In the fall of 2018, a small group of stakeholders formed a workgroup to discuss partial 404 assumption, and which groups would like to see partial assumption. Working for property owners involved with both development and mining, OPOA asked DSL to seek partial assumption for urban development and mining activities. This bill allows DSL to begin that process.
HB 2436 is a significant bill. Property owners seeking to develop their properties for urban development or for mining activities find themselves having to seek two approvals for any wetland fill/removal activities caused by their project – one approval from DSL and a second approval from the Corps/EPA. The approvals are sometimes contradictory, they operate on different timelines, there are two sets of fees, and opponents have two avenues to challenge an approval. This is a waste of time and money, and will be greatly streamlined if EPA/Corps approve a DSL application for partial 404 assumption. Passage of this bill enables that application to begin.