PressRelease:
Powder Basin Watershed Council
3990 Midway Drive
Baker City, Oregon 97834

PBWC REGULAR MEETING MINUTES
05 August 2009


Meeting was called to order at 5:30 p.m. by Tim Bliss, Chairman.

Approval of Minutes 07/08/09 – The May meeting minutes were approved by Council consensus.

Recognition of Guests / Unscheduled Business: Recognition of guests was deferred until the panel introductions.

INSTREAM PERMITTING PANEL:
Jim Young introduced the panel discussion and gave some background on the PBWC experience with applying for instream work permits. He introduced the panelists:
Brett Moore, Project Engineer – Anderson Perry & Associates
Tonya Dombrowski, Grande Ronde Basin Coordinator – OR Department of Environmental Quality
Gary Miller, Field Supervisor, La Grande Field Office, – US Fish & Wildlife Service
Bethany Harrington, SE OR Resource Coordinator – OR Department of State Lands
Multiple guests were also welcomed (see attendance list at end of minutes).

Timelines
The panel started with a discussion of the timelines needed for permits as outlined in the NOWC project management handbook. Brett noted that in any water with anadromous fish the permit process should start at least a year before construction is planned—NOAA Fisheries has a 135 day review after the rest of the permit is complete. You should also be aware of the late summer in-water work windows to do the in-stream work. Always allow extra time for unforeseen complications.
Gary noted that USFWS has 135 days in the permit process for a B.A. (biological assessment) on threatened and endangered species. However they usually turn around a B.A. in 65 days and a concurrence in 30 days. He remarked that early engagement with FWS by the permittee is the key to a smooth process because it allows the FWS to address potential issues sooner in the process.
Brett noted that SHPO (the State Historical Preservation Office) has a process for artifact and cultural resource issues. In our experience all permits applications in this region are required to have a pedestrian survey and report to SHPO by a professional archeologist. This is an example of the importance of knowing all of the issues that may come up in the permitting process.

Communication
The NOWC handbook suggests establishing a relationship with permitting agencies early in the process. Bethany agreed with the importance of early contacts, pre-application meetings, and site visits to make the process function as smoothly as possible. Bethany described a twice-yearly permitting public meeting that is held in Bend which is attended by representatives from DSL, USACE, USFWS, ODFW, DEQ, and other permitting agencies. People are invited to bring their projects for discussion to this “one-stop shopping” event to get pre-application comments and feedback from a range of agency representatives. She noted that this event has helped the process in Central Oregon and suggested that is might be duplicated in Eastern Oregon. People commented that a good time for such a meeting might be late fall or early spring (November and April) due to busy summer schedules and the difficulty of winter travel at times.
Tonya also noted that contacts and communication are important. She emphasized that you should ensure that any agency personnel you work with on a project or have routine contact with are informed about your permit application. S/he may be able to act as an advocate for you in the permit process. Suzanne asked what a 401 certification from DEQ looks like. Tonya responded that it varies by project and may have conditions attached. She advised that all submissions should have up-front acknowledgement of water quality issues—if this is neglected there may be questions from DEQ and the process will be delayed. In any project it is good to check in with the agencies and see if a permit is required. They can give you a letter confirming that no permit is needed if applicable.
Karen Leiendecker asked about DSL permits vs. USACE permits. Bethany answered that DSL has an exception for projects less than 50 cubic yards in most waterways. In “essential salmonid habitat” and “state scenic waterways” any amount of removal or fill requires a permit. The Army Corps of Engineers has no size exemption so any project in waters under jurisdiction requires a permit. It is safest to submit a Joint Permit Application to both agencies. They will inform you and can provide documentation if a permit is not needed. At a minimum you should always check with DSL and USACE on the need for permits. USACE jurisdiction is based on Section 10 of the 1899 Rivers and Harbors Act (all work in navigable waters) and Section 404 of the 1972 Clean Water Act (dredge and fill in all waters of the U.S.); it extends to the ordinary high water mark and delineated wetland boundaries. Brett noted that there is a 2008 jurisdictional determination available from USACE defining waters under their jurisdiction—effectively wetlands and annual streams.
Wes Morgan noted that the permitting process had numerous pitfalls for the small grant projects. A large amount of information was needed for very small projects and each request for new information appeared to reset the time clock on the permit application. Gary noted that for FWS the information needed depends on the project. They “start the clock” when the full packet is received. Contacts and relationships between the project managers and the agency make it quicker and easier to ensure all needed information is submitted. Gary noted that he needs documentation in the files so that another reviewer could follow the same process and understand the review done by the agency.
Bethany commented that they do return many applications for more information. DSL attempts to be consistent for all applicants. Data needed is commensurate with the scale of the project; she gave the example of a 24,000 cubic yard project that required significantly more information and detail than a 60 cubic yard project. She noted that DSL evaluates permit applications from a wide range of applicants: restoration, road building, housing developments…

Cost of Compliance, Talking Point 1
Jim gave the example of the Pine Creek Small Grant restoration projects and the cumbersome permitting requirements that delayed construction for a year. The grants for work at the two project sites (a third landowner dropped out when the process dragged on) totaled less than $10,000. Jim estimated that they spent another $10,000 in volunteer time working on the design and permits for construction. Initially they did not realize permits were needed for small projects. They started the permit application in March 2008 and could not finish in time to do the construction in the in-stream work window, despite the fact that it was extended until the end of September 2008. CTUIR asked for a cultural resource survey in August and there was no time left to complete the permit. NRCS provided an archeologist to conduct a pedestrian survey that fall. Brett noted that a cultural survey by an archeologist usually costs $3,000 - $5,000 per session. In this example the costs of permitting was more than the cost of project construction.
Brett described two similarly difficult projects he has worked on. The first was an erosion event in farm ground along the Umatilla River. They were not expecting to need an archeological pedestrian survey and so missed the in-stream work window that fall while waiting for the work permit. High flows that winter washed out another 12 feet of the field and forced a complete revision of the design for bank stabilization because the conditions changed significantly before the work could be done. The second was a private landowner in Wallowa County who needed to install a sewer line across a small stream. The process was so cumbersome for them that Brett had the impression that next time they would not ask for permits or engineering help but just do the work on the quiet and hope to avoid notice.
Suzanne Fouty asked if the process was designed with large scale projects in mind rather than small ones. Bethany noted that DSL has the <50 cubic yard exemption to ease the burden on smaller projects. However they have a responsibility to treat applicants equally and they can’t “cut corners” on a small project without compromising the process for large, high-impact projects. Jim remarked that the <50 cubic yard exemption with DSL is a significant help but requiring a $5000 pedestrian survey to install 2 logs and a few rocks is not reasonable. Arthur Sappington mentioned the Small Business Administration programs to help reduce regulatory costs on small businesses and wondered if any SBA programs or policies would apply to in-stream permitting. Gary noted that FWS can sometimes provide cultural resources surveys for landowners who are signed up with the Partners for Fish and Wildlife program. Jim commented that the obvious answer to survey costs is to bundle small projects, but this can be hard to manage in practice.
Risk Lusk asked about who can request cultural surveys. In-stream work permits are public documents with a public comment period, so anyone can comment. The Confederated Tribes of the Umatilla are always notified (in Eastern Oregon at least) as interested parties. USACE is the lead agency on cultural resource issues and they will not issue a permit without SHPO concurrence. Jim suggested that he would not propose in-stream projects for small grants again; the permitting process was too high of a barrier. Brett noted that an archeologist’s report is required even to say “nothing there”. Bethany noted that DSL charges no application fees for restoration project permits.
Jim summarized the answers to the cost problem as: 1-understand upfront what permitting costs will be, and 2-bundle small projects for permitting and cultural surveys.

Speed Permit Process, Talking Point 2
Brett commented that a general permit for all activities in a watershed action plan would not be possible because the various activities would be too different—it might be possible to get one permit for several sites that will all be done in one year. Bethany suggested a unified permitting meeting, similar to what is organized in Bend, might help speed up the permit process for projects in this area. She emphasized that general permits are for very specific, repeat activities and that if they vary by site it would not be worth the considerable up-front time needed to apply. She suggested that Kevin Herkamp, Regulatory Streamlining Coordinator (kevin.herkamp@dsl.state.or.us, 503-986-5305), in the DSL Salem office might be a resource for more information on general permits and other stream work.
Gary noted that consultation is usually fairly quick for FWS. The process is quicker if they can learn about the project early (and possibly have a multi-agency field trip to the site). The LaGrande FWS will try to work with applicants and help meet their work timelines if possible. Bull trout and other threatened and endangered species of animals and plants are the main focus of FWS.

Education, Compliance, and Enforcement, Talking Point 3
Bethany commented that DSL knows the process is cumbersome and work without permits and other violations happen. DSL has an enforcement process and can levy fines of up to $10,000/day for violations. They realize that many people do not know about permit requirements and penalties for knowing violations are often steeper. Penalties for knowing violations can include fines and/or an order for restoration. Bethany emphasized that she will work with people and try to help you with the process.
Adena Green shared her experience with USACE enforcement on a project done in the Owyhee area that predated her tenure. An instream project, which had been done without permits, failed which brought it to the attention of the USACE. The landowner was threatened with fines as high as $25,000/day and cost of restoration.
Steve Edwards commented that the permit process appears to be an impediment to watershed improvement when the intent ought to be to facilitate restoration, not block it.
Bethany emphasized that DSL has responsibilities to many people. They want to work with project managers yet they must also protect the interests of other people, e.g. downstream landowners who may be affected by the project. Tim Bailey noted that we are still learning about stream restoration methods and effects. The best action is not always known or obvious and there is good reason for review of projects before construction.
Adena noted that landowners usually come to the Owyhee WSC because they do not have cash to do the projects themselves. When a project requires first significant engineering costs to prepare a design and then work permits in a time-consuming and expensive process there is not enough grant money remaining to pay for the actual work on the ground. The net result of the process is to block restoration projects.
Jim asked, “How can we learn to make the process work for us?”
Arthur recounted the experience of the Eagle Valley irrigators with the rebuilt, fish-friendly diversions on the Kay Young and Nash ditches. The rock weir diversions did not work well and the irrigators only received 80% of their allocated water. They finally received emergency permission to use plastic to improve the function of the diversion. He noted that the project failed and seeing it has discouraged other irrigators from installing new diversions that allow fish passage.
Suzanne noted that the Forest Service is working on long-term strategies to plan ahead for permits.
Denine Schmitz suggested that the role of the Watershed Council is to understand the regulations and the process and to help landowners navigate it. Perhaps the WSC can educate and facilitate projects and plans in the short and long term for landowners.

Closing Remarks
Jim asked where the Council should go from here. Bethany suggested that you can save money on project development by involving the permitting agencies with the engineer from the beginning of the design process. This allows you to make sure the proposed design satisfies permitting concerns before the engineer spends a lot of time and money completing it. She emphasized that it is important to communicate with people at the permitting agencies—we will try to help you.
Gary emphasized the importance of involving the FWS early in your project process. Site visits and multi-agency trips are very helpful. Allow the Service some lead time and inform them of your time frame and deadlines. Please call with questions. Also the Partners for Fish and Wildlife program may be able to provide financial and/or technical assistance with restoration projects.
Tonya suggested communicating with DEQ early in the process. Please ask for help and don’t be afraid to call. You can also ask for financial support—DEQ has some (although not a lot) money to help with projects. She suggested a basin plan to allow you to direct resources for maximum impact and plan your work.
Brett noted the need for patience. Ask lots of questions up-front. The process is dynamic and it may not be quite the same now as it was two years ago.
Jim proposed that we will send out notes from this panel discussion. The WSC will host an action planning meeting on permitting some time before January.
Tim suggested pursuing the idea of a multi-agency permit pre-application and review meeting for Eastern Oregon. Bethany agreed that it might be helpful. She suggested they would spend about 20 minutes per permit at such a session. This would be an opportunity to go over the process and the projects with permit applicants. April and October/November would probably be the best times for such a meeting.

GENERAL BUSINESS:

Baker County Natural Resources Advisory Committee
Steve Edwards reported on the NRAC and preparation of the watershed section for the county natural resource plan. He hopes that this process will encourage a watershed management discussion at the NRAC and help identify the scope of watershed management issues. Steve circulated a first draft of the written watershed section to the Council. He asked for comments and feedback. The plan is to present a Council-reviewed draft to the NRAC at their August 25 meeting. They will return comments and the Council will adjust it to deliver a final draft to the NRAC. The final product will be owned and possibly modified by the NRAC as they incorporate it into the county natural resource plan which the county commissioners hope to hold public hearings on in early 2010. Steve emphasized that this is a short, general document that is in development. He would like to address any concerns of Council members before presenting the draft to the NRAC.
Jerry commented that he is concerned by references to in-stream leases of water rights in the draft document. Also there may not be viable engineering solutions to improve water storage in sedimented reservoirs; in previous research dredging was always found to be cost-prohibitive. Jerry will suggest additional language for the draft document to Steve. Steve asked that any Council members with additional concerns talk to him so it is clear if the draft language is acceptable to everyone or if it needs further work before presentation to the county NRAC.

Boulder Creek – Tim Bliss
Tim reported that he gave a presentation on July 20 to the USFS on erosion issues in the Boulder Creek area.

Baker Sanitary Gulch – Tim Bliss
Tim reported that he has made contact with Baker Sanitary and Randy Joseph, landowners in the area affected by the flooding and erosion near Baker Sanitary Landfill; they were positive and gave permission for him to do inventories on their property. Tim will continue to follow up with the other 9 landowners in the area.

PBWC Board of Directors Report:
Treasurer’s Report:
Eric Schoenfeld reported, “We’re OK.”

The meeting was adjourned at 7:33 pm.
Council Attendance: [14 members, 12 voting]
7 = Quorum

Timothy Bliss, Chairman Aaron Umpleby Jesse Naymik
Eric Schoenfeld, Treasurer Jerry Franke Suzanne Fouty
Marion Crow Steve Edwards Denine Schmitz
Tim Bailey Steve Brink Jim Young
Bruce Lindley Rick Lusk
Vicki Wares, Coordinator Sarah Young, Assistant Coordinator

Others Attending:
Tonya Dombrowski, Grande Ronde Basin Coordinator – OR Department of Environmental Quality
Bethany Harrington, SE OR Resource Coordinator – OR Department of State Lands
Gary Miller, Field Supervisor, La Grande Field Offic, – US Fish & Wildlife Service
Brett Moore, Project Engineer – Anderson Perry & Associates
Arthur Sappington
Adena Green, Owyhee WSC Coordinator
Wes Morgan, Baker SWCDs
Karen Leiendecker, OWEB Representative - Eastern Region
Amy Charette, NF John Day WSC Coordinator
Lyle Defrees

Attachments: none

Next Council General Meeting
September 2, 2009
5J District Supervisor’s Office
4th and Broadway 5:30 p.m.