What is a “Waters of the US?”

This workshop will cover the October 31, 2016 USACOE  Regulatory Guidance Letter 16-1.  We will cover the latest updates to Approved Jurisdictional Determination Letters (AJD) and Preliminary Jurisdictional Determination Letters (PJD) and how final agency actions will be considered in light of USACOE v. Hawkes.

Purchase Your Tickets Here

Wetlands are wetlands and waters are waters but what makes them jurisdictional?

For the past 6 years there have been thousands of pages of reports, regulations, guidance, court decisions, and news headlines all about “waters of the US.” Sorting through the swamp of this has been no easy task.

What is regulated as a “Water of the US” has changed a lot since it was first induced in 1899. In recent days we have seen significant revisions to the definition only leading up to legal challenges resulting in repeals.

The problem we all face is that as project move forward we still need to be concerned with what is and what is not regulated as a “Waters of the US.”  We at the Swamp School have put together a comprehensive online workshop on what are the current rules, how to apply them and how to navigate through the proposed and envisioned changes. We will cover the brand new Jurisdictional Determination Form that was released with RGL 16-1 and some tips on what needs to be included on it.  Join us online on December 2, 2016 at 1 PM EST for a fully interactive online workshop on what the current rules say and how to work with them on your projects.

Download RGL 16-01 Here

Any questions? Just give us a call at 1-877-479-2673.

Please be sure to purchase one ticket per student.  Use of the same student account for multiple users is not allowed.  If you wish to purchase tickets for a group please contact us for additional group discount opportunities.

The Swamp Stomp

Volume 16, Issue 24

The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize waters of the US and wetlands activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  The idea of a nationwide permit is that the activity will result in no more than minimal individual and cumulative adverse environmental effects. There are currently 50 NWPs. These NWPs were published in the February 21, 2012, issue of the Federal Register (77 FR 10184) and expire on March 18, 2017. On June 1, 2016 the Corps published in the Federal Register a notice, that they are beginning the process for reissuing the NWPs so that the reissued NWPs will be in effect immediately after the current NWPs expire.

The U.S. Army Corps of Engineers (Corps) is soliciting comments for the reissuance of the existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also proposing to issue two new NWPs and one new general condition. The Corps is requesting comment on all aspects of these proposed nationwide permits. The reissuance process has started with this publication of the proposed NWPs in the Federal Register for a 60-day comment period. The comment period ends on August 1, 2016.  The purpose of the Federal Register notice is to solicit comments from the regulated public on the proposed new and modified NWPs, as well as the NWP general conditions and definitions. In addition to the nationwide public notice, each Corps district will publish a separate public notice to solicit comments on its proposed regional conditions for these NWPs.

There are several significant changes to the existing permits suggested in the notice that include the consideration of expanding the acreage limit allowed under some NWPs to increase up to 2 acres.  It has also been suggested by the Corps that the acreage limits be waived in some circumstances. The notice discusses how the President’s Climate Action Plan and EPA’s proposed Clean Power Plan may be reasons to increase the acreage limits and PCN thresholds of a number of NWPs including the permits related to natural gas and renewable energy production and transmission.

Two new permits specifically used for ecological restoration projects are being considered for 2017.  The removal of low-head dams is one new proposed permit.  This is often associated with stream restoration projects. The construction and maintenance of living shorelines is the other new proposed permit.  This is associated with the use of vegetation as shoreline erosion and control.

In the past some low-head dam removals may have been authorized by NWP 27, if those dams were small dams located in headwater streams. However, most low-dam removal requires individual permit authorization because it is not covered by an NWP or regional general permit. The proposed NWP will facilitate the removal of low-head dams that are no longer being used for their intended purposes or are too costly to repair. The removal of low-head dams restores ecological processes in rivers and streams and enhances public safety.

The construction and maintenance of living shorelines is a new NWP. Many living shorelines projects require individual permit authorization, and some Corps districts have issued regional general permits to authorize different types of living shorelines. These types of projects are often undertaken by waterfront property owners in areas like the Chesapeake Bay as a way to stabilize the shoreline.  It is often an alternative to using traditional stabilization methods like bulk heading rip-rap placement.  Most of the living shoreline construction methods require significant amounts of fill material to restore the shore bank.  The proposed NWP will provide general permit authorization for the construction and maintenance of living shorelines, which will give landowners a choice in how they can protect their property under erosion mitigation measures authorized by NWP. Bank stabilization activities are authorized by NWP 13 and if the proposed new NWP is issued, it will provide a similar streamlined authorization process as NWP 13. Both of these NWPs will result in decreased processing times and permit application costs associated with obtaining authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

Public comments are due on August 1, 2016.  There are already some comments posed supporting the expansion of the acreage limits.  We highly encourage you to send in your comments to the Corps.  The direct link to the public comments and the Corps notice is: HERE

The Swamp Stomp

Volume 16, Issue 21

On Friday, May 20, 2016 the US Army Corps of Engineers released the pre-publication of the proposed 2017 Nationwide Permits. The purpose of this release is to start the public comment process. This process officially starts when the 2017 nationwide permits are published in the Federal Register. The public comment period ends 60 days from publication in the Federal Register.

There have been a number of significant changes to the existing permits along with the creation of two new permits. The Corps of Engineers lists 52 nationwide permits along with NWP A and NWP B.  NWP A is for the removal of low head dams. Low head dams are dams constructed to pass up stream flows over the entire width of the dam crest on an uncontrolled basis. These types of dams are often associated with stream and river restoration projects.  NWP B is for the construction of living shorelines. These types of projects are often associated with title areas that include the use of vegetation for shore erosion control. Oftentimes fill is required to create a suitable planting substrate.

There are a number of changes to the existing permits.  These are just a highlights of the some of the permit condition changes.  These are explained in more detail in the pre-publication document.

Nationwide Permit number 3 (maintenance) has in the past been used for some stream restoration projects. The new nationwide permit does not authorize maintenance dredging for the primary purpose of navigation; beach restoration; or new stream channelization or stream relocation projects. It would seem that the intention is to move these activities to the new NWP A.

Nationwide Permit 12 (utility line activities) has had some changes. The Corps will allow the use of temporary mats for construction activities. They also added a note referencing the definition of a single and complete linear project. The nationwide permit does authorize inadvertent returns of drilling muds through subsoil fractures better known as frac-outs that might occur during directional drilling operations to install utility lines.

The waters of the US definition debate lingers on in this publication. Currently, the most recent published 2015 version of the waters the US definition remains on hold. However, one of the topics that arose from the definition debate was the increase in wetland disturbance authorized by the new nationwide permits. The Army Corps of Engineers has more or less held the same acreage limits for the new permits. However, in the pre-publication discussion related to acreage limits the Corps appears open to expanding these limits. They specifically request public comment to this end. Some of the comments that were published in the waters the US definition discussion seem to indicate that while the EPA and Army Corps were expanding what would be defined as a waters of the US at the same time they were also indicating that they would allow more impacts through the nationwide permit process.

There are also a set of classes that apply to certain types of waters. A number of the nationwide permits are applicable only to certain types of waters. These include:

• navigable waters of the US
• all waters of the US
• nontidal waters of the US
• nontidal wetlands
• coral reefs
• special aquatic sites

Finally, the current 2012 nationwide permits included renewable energy projects. These were either land-based or water-based. A significant amount of change has been proposed for these permits.

We at the Swamp School are in the process of preparing an easy to follow guide to the new nationwide permits. If you would like to download a free copy of this guide please click the button below and will be happy to send you one as soon as it’s ready. In addition please keep an eye on the Federal Register to find out when the public comment period opens. We will be posting this information to our Facebook page as soon as it’s available.

The Swamp Stomp

Volume 16, Issue 15

The US Fish & Wildlife Service and National Marine Fisheries Service (the “Services”) have promulgated major changes to their critical habitat regulations. The result will be more designation of state, local and private land as critical habitat, and increased regulatory burdens and costs on land activities. Effects will be felt by a wide range of public and private sector entities across government and industry sectors, including energy, land and mineral development, real estate, banking, commercial transactions and agriculture. The changes take effect on March 14, 2016.

The Endangered Species Act directs the Services, at the time they list a threatened or endangered species, to designate “any habitat of such species which is then considered to be critical habitat” where prudent and determinable, and based on the best scientific data available.1 Congress designed critical habitat to play a more modest role than the listing of a species. Specifically, the prohibition on “destruction or adverse modification” of critical habitat does not apply to private activities generally, but instead is implemented through application of ESA Section 7 consultation on federal agency actions, including the issuance of federal permits. Federal agencies are required, through Section 7 consultation, to “insure”  that any activity funded, carried out or authorized by that agency is not likely to “result in the destruction or adverse modification” of designated critical habitat.2

The Services issued two rules and a policy that significantly reshape decades-old regulations governing the designation of — and Section 7 consultation on — critical habitat. First, the Services issued a rule to revise the criteria for designation of critical habitat, 81 Fed. Reg. 7,414 (Feb. 11, 2016). Second, the Services promulgated a revised definition of “destruction or adverse modification” of critical habitat, 81 Fed. Reg. 7,214 (Feb. 11, 2016). Finally, the Services adopted a final policy regarding the implementation of ESA Section 4(b)(2) for exclusion of areas from critical habitat designation, 81 Fed. Reg. 7,226 (Feb. 11, 2016).

Taken together, the rules increase the likelihood that the Services will make adverse modification findings (the equivalent of a jeopardy finding and prohibited by the ESA), and could make it more likely that the Services will designate critical habitat and do so across larger areas of land than in the past, impacting landowners and project proponents alike. These changes will lead to increased costs for project proponents who require federal permit authorizations or licenses, and significant restrictions on land use and activities.

Final Rule Defining “Destruction or Adverse Modification”

ESA Section 7(a)(2) requires every federal agency to insure that actions “authorized, funded, or carried out” by the agency do not “jeopardize the continued existence of” listed species or destroy or adversely modify designated critical habitat. A wide range of projects require federal authorization and can trigger the consultation requirement.

The final rule broadens the definition of “destruction or adverse modification,” raising the concern that the Services will be more likely to determine that a federal agency action will destroy or adversely modify critical habitat. The final rule defines “destruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species that preclude or significantly delay development of such features.” The final rule also broadens its interpretation of the term “appreciably diminish,” thus allowing the Services to find adverse modification based on any measurable effect.3 While the Services state that they will exclude minor adverse effects, their broad interpretation of “appreciably diminish” will afford themselves significant discretion.

Final Rule Amending Criteria for Critical Habitat Designations

The ESA defines “critical habitat” as “the specific areas within the geographical area occupied by the species, at the time it is listed …, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special considerations or protection.”4 As a further limitation, the statute states that “critical habitat shall not include the entire geographical area which can be occupied” by the species, “[e]xcept in those circumstances determined by” the Services to be appropriate.5

The final rule amends and broadens the Services’ regulations governing the designation of critical habitat, and includes three major changes from the previous designation process:

• The final rule broadly defines “geographic area occupied by the species” (a term not defined in the current regulations) to include a wider area around the species’ occurrences at the time of listing and areas that are used only periodically or temporarily by the species. The Services’ definition allows for designation of habitat as occupied “even if not used on a regular basis.” See 79 Fed. Reg. at 27,069 (emphasis added). This would include areas not (and which may never be) occupied by the species.
• The final rule eliminates the concept of “primary constituent elements” in determining whether to designate critical habitat. Instead, the Services will now use a broader, more subjective requirement to identify “physical and biological features essential to the conservation of the species,” which can include “ephemeral or dynamic” habitat features and features that allow for development of habitat characteristics usable by the species.
• The final rule departs from the Services’ prior approach to unoccupied habitat, which required the Service to first determine it could not recover the species with the inclusion of only the “geographical area presently occupied” by the species. The final rule removes this step and allows the Services to consider occupied and unoccupied areas concurrently.

These new provisions provide an especially broad basis for designating critical habitat, potentially leading to much larger critical habitat designations. More landowners could have their land designated as critical habitat, and the Services could be more likely to find, during their review of a permit application, that the proposed activity or project will result in a prohibited destruction or adverse modification of critical habitat.

Final Critical Habitat Exclusions Policy

The Act provides that the Services may exclude an area from critical habitat designation if the benefits of such exclusion outweigh the benefits of designation, i.e., on economic or other public interest grounds.6 The Services’ final policy, which they emphasize is “nonbinding,” sets forth how the Services will consider partnerships and conservation plans, conservation plans permitted under ESA Section 10, tribal lands, national-security and homeland-security impacts and military lands, federal lands and economic impacts in the critical habitat exclusion process. The policy indicates that areas subject to permitted conservation agreements and plans will generally be excluded from critical habitat designation.

Implications

Taken together, the final rules and policy will reshape and complicate the critical habitat designation process and adverse modification determinations.

Designation of critical habitat can cause immediate and significant restrictions on otherwise lawful uses of the land, create expensive and time-consuming new procedural requirements on ongoing and future projects, increase litigation risk and cause significant diminution in the value of property. If critical habitat designations increase, and additional swaths of land become too expensive or otherwise too difficult to use for commercial or other productive activities, affected entities are likely to find fewer comparable sites available for their projects, particularly if numerous regulatory constraints bear on site selection. Where federal authorization or funding is required for projects and activities, the potential for a prohibited “adverse modification” determination can result in substantial costs, delays and restrictions.

Litigation over these rules is likely.

Source:  Hunton & Williams (https://www.hunton.com/files/News/5a27ed15-5f4d-4181-9b07-b361e860310c/Presentation/NewsAttachment/681a23e2-e205-4f71-899d-b3654e8ab515/major-changes-to-endangered-species-act-critical-habitat-rules-will-cause-substantial-impacts-to-.pdf)