5 Regulatory Considerations for 2016

Last year (2015) was a busy year for regulatory and environmental issues.  2016 will bring final action (or inaction) on some of these items.  Below find a few national and regional hot topic items and their status.

1. Status of the Revised Clean Water Rule

On October 9th, 2015, a divided panel of the Sixth Circuit Court of Appeals (Court) issued a stay nationwide against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) from enforcing the revised definition of “waters of the United States” (WOTUS), also known as the Clean Water Rule.  The stay was issued pending a determination by the Court as to whether district or circuit courts should be the arbiters of WOTUS rule challenges.  On December 8, 2015, the Sixth Circuit Court of Appeals heard arguments on this issue.  An opinion is likely to be issued in early 2016.  Regardless of which court is given final authority, litigation regarding the Clean Water Rule is far from over.

2. The 2017 Reissuance of the Nationwide Permits

The U.S. Army Corps of Engineers (USACE) is authorized under Section 404(e) of the Clean Water Act (CWA) to develop and issue general permits for activities that have minimal individual and cumulative adverse environmental effects. These general permits can be issued for a period of no greater than five years. There are two types of general permits, the regional general permit and the nationwide permit (NWP), used by the USACE. A NWP is a general permit that authorizes activities across the country, unless a district or division commander revokes the nationwide permit in a state or other geographic region. The NWPs are used for authorizing a wide variety of activities such as mooring buoys, residential developments, utility lines, road crossings, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities.  There are currently fifty (50) NWPs issued in 2012.  These NWPS are due to expire March 18, 2017. 

Some USACE Districts have begun coordination with Tribes, State and Federal agencies on the NWP reissuance process.  The 2017 version of the NWPs are currently under review at the Office of Management and Budget (OMB).  There is no indication that any NWPs have been added or deleted.  The USACE Headquarters anticipates issuance of a Notice of Draft NWPs in the Federal Register in late February 2016.  The comment period on the Draft NWPs is 60 days.  Headquarters anticipates issuance of the final NWPs in the Federal Register by the end of 2016. 

The individual USACE Districts will issue a Public Notice with the draft regional conditions immediately after Headquarter's issuance of the Draft NWPs.  The comment period on the draft regional conditions is thirty (30) days.  The Districts will coordinate with the tribes, EPA and State agencies on CWA § 401 Water Quality Certification and the regional conditions.  The Districts will submit decision documents, § 401 and draft regional conditions to the Division for approval.  Upon approval, the Districts will publish a Special Public Notice with the NWPs and regional conditions. 

It is hoped that the new NWPs with regional conditions will be approved and effective prior to the March 2017 expiration date.

3. USFWS Considers Incidental Take Permitting Under The Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703-712) is the primary legislation that provides legal protection for over one thousand native bird species.  The U.S. Fish and Wildlife Service has statutory authority (50 CFR Parts 10 and 21) and responsibility for enforcing the MBTA.  Other than a few exceptions for special military operations (50 CFR 21.15), the regulations have no provisions for permitting an incidental take of a migratory bird.  USFWS defines take as “to pursue, hunt, shoot, wound, kill, trap, or collect, or attempt to collect” (50 CFR 10.12).  Violators are subject to criminal statute only and formal actions are brought by the U.S. Department of Justice; there are no citizen provisions. 

In May 2015 the USFWS published a public notice in the Federal Registry announcing plans to prepare a programmatic environmental impact statement (PEIS) which will evaluate the effects of a program that would authorize incidental take under the MBTA.  The USFWS is considering various approaches for authorizing incidental take of migratory birds.  One possible approach would be to establish a general conditional authorization for incidental take by certain hazards to birds associated with particular industry sectors.  Another approach would be establishment of an individual incidental take permit.  USFWS will also examine the use of a memorandum of understanding with other Federal agencies regulating activities that may result in an incidental take.  USFWS will evaluate the development of voluntary guidelines for industry sectors identifying best management practices for avoidance or minimization of bird mortality.

USFWS had received over 140 public comments from industries that are or have been subject to MBTA prosecution, including oil and gas, utility, solar and wind energy companies.        

4. Louisiana Rapid Assessment Method Trial Begins  

The New Orleans District (NOD) begins the Interim Louisiana Rapid Assessment Method (LRAM) trial period starting January 2016.  This new method is designed to replace the Modified Charleston Method formerly utilized by the NOD.  The change was spurred on by language in Section 107 of the Consolidated and Further Continuing Appropriations Act of 2015.  The Act states "None of the funds made available in this Act may be used within the borders of the State of Louisiana by the Mississippi Valley Division or the Southwestern Division of the Army Corps of Engineers or any district of the Corps within such divisions to implement or enforce the mitigation methodology, referred to as the "Modified Charleston Method".  

LRAM will be used to assess compensatory mitigation requirements resulting from unavoidable wetland impacts associated with activities permitted under Section 404 of the CWA and Section 10 of the RHA of 1899.  LRAM will be used across all wetland types within the NOD.  This assessment methodology does not focus on specific ecological functions or values provided by wetlands; rather it is based on observed ecological conditions (i.e. high, low or medium quality). 

The trial period is one year.  In January 2017 the NOD will issue notice seeking public comments on the use of LRAM.  The NOD will assess comments and anticipates use of the final LRAM starting in March 2017.

5. Regulatory Update: USACE Galveston District Real Estate Division

The U.S. Army Corps of Engineers (USACE) Galveston District Real Estate Division launched a new and updated real estate application in December 2015 in the attempt to outline the process required when using federally controlled property within the District.  The updated application might reduce preparation time by making the submittal more efficient.  Processing times are still subject to the complexity of the project and efficiency of other USACE division’s authorizations (i.e. Section 404/10/408 permit authorization).  Typically applications take no less than 6 to 12 months to process.  However, it is possible that more complex projects could take over 24 months to process.  Additionally, a real estate clearance cannot be processed until all permits are authorized and Section 408 clearance is received.

Learn more about PCS' Permitting & Environmental Group

*special thanks to Michael Franks of PCS for the contributions of regional items 4 and 5 on this list. Mike can be reached at 713.407.2466 for inquiries related to items 4 and 5.

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