TxDOT Environmental Conference September 14, 2016 Session 8 Policy Update and Current Issues in Natural Resources

Transcription

1 TxDOT Environmental Conference September 14, 2016 Session 8 Policy Update and Current Issues in Natural Resources By Sharon Mattox Sharon M. Mattox PLLC

2 ISSUES Status of regulation defining Waters of the United States Proposed Clean Water Act Nationwide Permits for 2017 CEQ Guidance on considering climate change in NEPA reviews. Pre-Enforcement Review of Jurisdictional Determinations 214 Agreements 2

3 404 permit required to discharge dredged or fill material to waters of the US. Navigable waters defined as waters of the United States. 3

4 What is a Water if the United States? Current definition 33 CFR Part 328 Proposed new rule effective August 28, Currently stayed nationwide. 4

5 Challenges to the Rule were filed in numerous federal district courts and federal circuit courts. 6 th Circuit Court of Appeals on Feb 22, 2016 held jurisdiction proper in the circuit court of appeals. Rehearing En Banc was denied and a decision on the merits is pending. 5

6 August 16, th Circuit stayed and appeal by 11 states pending a decision by the 6 th circuit( Georgia v. McCarthy, No EE) August 19, th Circuit hears oral argument on federal request to dismiss the claims of 23 business, government and other entities (Chamber of Commerce v. USEPA, Nos and ) 6

7 What is Water of the United States? Not obvious Requires technical expertise to determine. 7

8 2015 Rule- (a)(1) All traditionally navigable waters (a)(2) All interstate waters (a)(3) Territorial seas (a)(4) - All impoundments of otherwise jurisdictional waters (a)(5) Tributaries as defined by regulation (a)(6) - Adjacent waters as defined by regulation Significant nexus determination done in advance no further analysis. 8

9 2015 Rule- (a)(7) Similarly situated waters include: (v) freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast. (a)(8) Other waters subject to a case by case determination of significant nexus and thus federal jurisdiction 9

10 2015 Rule- (a)(5) Tributaries Must have a bed and banks and an OHWM May have any flow regime May be natural, man-altered, or completely man-made. 10

11 2015 Rule (a)(6) adjacent waters are bordering, contiguous or neighboring to (a)(1-5) waters. Neighboring any part or all of a water is: 1) within 100 of the OHWM of an (a)(1-5) water; 2) within the 100 year floodplain and within 1500 of the OHWM of an (a)(1-5); or within 1500 of the high tide line, or the OHWM of the Great Lakes. 11

12 (a)(7) must be analyzed in combination as a group in the region. If the Corps asserts jurisdiction over an (a)(7) water it need not analyze all similar wetlands in the region. The Corps cannot find an (a)(7) water does not have a significant nexus without a regional analysis. 12

13 Texas Coastal wetlands uncertain geographic reach. Preamble notes that the term is not used uniformly in the scientific literature, but includes Texas prairie potholes (freshwater depression wetlands), and marsh wetlands that are described in some studies that occur on Lissie and Beaumont geological formations, and the Ingleside Sands. 13

14 (a)(8) Case-by-Case Within the 100 yr floodplain of an (a)(1-3) water Within 4000 of the high tide line or OHWM of an (a)(1-5) water The FEMA 100 year floodplain is used, but is subject to challenge 14

15 Ditches All ditches with perennial flow are jurisdictional Ephemeral ditches are jurisdictional if they include a relocated or excavated tributary. Intermittent ditches are jurisdictional if they include a relocated or excavated tributary, or drain a wetland. 15

16 Clean Water Act Types of Permits Individual Permits All projects with a loss of more than one-half acre General Permits Nationwide Regional 16

17 Clean Water Act Status of the Nationwide Permit Program 51 current NWPs expire March Proposed replacements published June 1, Comments were accepted through August 1,

18 Nationwide Permits NWP 3 Maintenance minor clarification NWP 6 Survey Activities no change NWP 14 Linear transportation projects note added concerning definition of single and complete lined project. NWP 33 Temporary Construction, Access, and dewatering PCN only for section 10 waters. NWP 46 Discharges in ditches no change 18

19 Nationwide Permits Regional Conditions have been proposed for Texas. Swg.usace.army.mil/portals/26/docs/regulatory/2017NWP/initial%20 PN%20DRAFT%20ORC% pdf?ver=

20 NEPA and Climate Change August 1, 2016, CEQ published final guidance on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews. Projects included under title 41 of the Fixing America s Surface Transportation Act ARE NOT EXCLUDED. 20

21 NEPA and Climate Change Final Guidance Climate change effects fall squarely within NEPA s purview. [A]gencies should provide the public and decision makers with explanations of the basis for agency determinations. [A]gencies should consider: 1) The potential effects of a proposed action on climate change as indicated by assessing GHG emissions ; and (2) The effects of climate change on a proposed action and its environmental impacts. 21

22 NEPA and Climate Change Guidance applies to all new actions when NEPA review is initiated. Agencies should consider applying guidance to projects in the EIS or EA preparation stage if this would inform the consideration of differences between alternatives or address comments raised through the public comment period. 22

23 Pre-Enforcement Review of Jurisdictional Determinations US Army Corps v. Hawkes, No (U.S. Supreme Court, May 31, 2016) Held: The Corps approved Jurisdictional Determination is a final agency action judicially reviewable under the APA. AJD marks the consummation of the agency s decision making process. AJD gives rise to direct and appreciable legal consequences. 23

24 214 Agreements September 2, 2015 Updated Guidance for Section 106 of the Water Resources Reform and Development Act of 2014 and Guidance on the Use of Funding Agreements within the Regulatory Program Corps may accept and expend funds contributed by a non-federal public entity, public utility company, or natural gas company to expedite the permit review process. 24

25 Questions? 25