American Foundry Society Government Affairs Conference

Transcription

1 American Foundry Society Government Affairs Conference Fixing America's Surface Transportation (FAST) Act Presented by Bill Malley The EPA/Corps of Engineers Clean Water Rule Under Section 404 of the Clean Water Act Perkins Coie LLP th Street, NW Suite 600 Washington, DC phone: Presented by Don Baur

2 The FAST Act: Will it Expedite Federal Environmental Reviews for Infrastructure Projects? Bill Malley, Perkins Coie LLP 2

3 You ve Seen the Headlines... Excessive Reviews Slow Transportation Projects Hartford Courant (Aug. 14, 2015) Why It Takes So Long to Build a Bridge in America Wall Street Journal (Nov. 22, 2013) Why Does It Takes So Long to Build Stuff These Days? Mother Jones (July 3, 2012) Why Do Construction Projects Take So Long? The New Yorker (Jan. 21, 2009) 3

4 Why Does It Take So Long? Short answer: Environmental regulations NIMBYism Lawsuits Longer answer: Most large infrastructure projects require environmental review under NEPA and other federal laws. The NEPA process is highly complex and a magnet for litigation. 4

5 What Does this Federal Process Apply to? Triggers for Federal Review Federal funding Federal approvals/permits (e.g., Section 404) Examples Highways, transit, rail, airports Transmission lines Oil and gas pipelines Water infrastructure projects Electricity generation projects 5

6 What Slows Down the Process? Federally led Agency staff bottlenecks Vague legal standards Leads to risk-averse approach Multiple, overlapping requirements NEPA, ESA, CWA, NHPA, CAA... Different standards, timelines, agencies Litigation APA: any federal decision can be challenged 6

7 Environmental Streamlining : What Is It? Political dynamic: Growing, bipartisan frustration with process Desire to expedite but not weaken any environmental laws. How this plays out: Executive Branch Priority Projects Pres. G.W. Bush Dashboard Pres. Obama Congress: Laws to streamline environmental reviews 7

8 Streamlining Legislation - Timeline 2003: Healthy Forests (timber) 2003: Vision 100 (airports) 2005: SAFETEA-LU (highway, transit) 2012: MAP-21 (highway, transit) 2013: WRRDA (water infrastructure) 2015: FAST Act (highway, transit, & rail) Plus Title 41 applies to essentially all infrastructure projects with cost over $200m 8

9 Title 41 of the FAST Act Applies to infrastructure projects that have estimated cost over $200m; require federal environmental review; and fall into any of these categories: energy production, electric transmission aviation, ports, waterways, water resources broadband pipeline manufacturing 9

10 What Does the Title 41 of the FAST Act Do? Similar to previous laws Coordination plans Deadlines for agency decisions Inter-agency dispute resolution process Time limits for filing lawsuits Additional provisions Dashboard (website) Benchmarks Greater role for private applicant Greater role for OMB Action-forcing officials Pooled funds 10

11 Permitting Dashboard 11

12 Implications for Private Applicants Key takeaways for project sponsors: Greater visibility into the permitting process through the dashboard Greater opportunity to provide input and engage federal agencies New tools for resolving disagreements among federal agencies But also: Increased complexity Same underlying legal requirements 12

13 The Clean Water Rule : How Will it Affect Development Projects? Don Baur, Perkins Coie LLP 13

14 How Did We Get Here? 14

15 The Clean Water Act The Clean Water Act regulates the discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. 15

16 Section 404 of the Clean Water Act Section 404 requires a permit for the discharge of dredged or fill material into navigable waters at specified disposal sites. Section 502(7) defines navigable waters as waters of the United States, including territorial seas. 16

17 What is a Water of the United States? 17

18 Riverside Bayview Homes, Inc. (1985) The Supreme Court held that wetlands are waters of the US if: Adjacent to navigable or interstate waters and their tributaries Wetlands function as integral parts of the aquatic environment 18

19 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) The Supreme Court held that waters of the United States did not cover isolated, non-navigable ponds whose connection to interstate commerce was their use by migratory birds. 19

20 Rapanos (2006) Supreme Court redefines waters of the US Traditional navigable waters + relatively permanent waters flowing directly or indirectly into traditional navigable waters Traditional navigable waters + non-navigable, relatively permanent waters with significant nexus Either/or Scolds EPA and USACE for not revising waters of the US rule 20

21 Rapanos: Clear As Mud? 21

22 Prior Attempts at Guidance Guidance: Obama Administration disagreed with the Bush Administration approach 2011 Guidance: Deliberately broader than the Guidance Politically controversial and not finished 2015 Connectivity Report: All streams, without regard to size or consistency of flow are connected to and have important effects on downstream waters Wetlands, open-waters in floodplains, and riparian areas, even those lacking hydrologic connections in either or both directions with downstream waters provide numerous benefits to downstream waters 22

23 Waters of the US Proposed Rule April 2014: EPA and Army Corps issued the Proposed Rule to define the phrase waters of the US taking an expansive view of federal permitting authority Goals: To increase transparency, predictability, and consistency leading to increased clarity and less litigation Response: Controversial with over 1 million comments submitted June 29, 2015: Final "Clean Water Rule" issued 23

24 2015 EPA/Corps Final Rule to Define WOTUS WOTUS defined as: (1) navigable waters (used/susceptible for use in commerce); (2) all interstate waters and wetlands; (3) territorial seas; (4) all tributaries of water bodies in the first three categories; (5) impoundments of water bodies that otherwise meet the definition of waters of the United States ; (6) waters adjacent to water bodies in the first five categories; (7) Certain types of waters (not generally found in arid west) that are determined, on a case-specific basis, to have a significant nexus to a waterbody in one of the first three categories 24 (8) All waters within the 100-year floodplain of a water in one of the first three categories or within 4,000 of the high-tide line or OHWM of a water in one of the first five categories that are determined, on a case-specific basis, to have a significant nexus to a waterbody in one of the first three categories

25 What Has Changed? Significant Nexus Under current regulations and Rapanos, waters are jurisdictional if they have a more than speculative or substantial effect on chemical/physical/ biological integrity of downstream TNW Proposed rule would include any other water that on a case-bycase basis has a significant nexus to a jurisdictional water Final rule set out two categories of waters for caseby-case significant nexus analysis, a 3-step process for making the analysis, and adopts Rapanos definition of significance 25

26 More on Significant Nexus Significant nexus determination: (1) what is the region where the target water is located? (2) are there similarly situated waters within that region? (3) does either the target water or the combined similarly situated waters have significant chemical/physical/biological impacts on the jurisdictional water? Rule has examples of functions that can constitute significance. But what does more than a speculative or insubstantial effect mean? The region will generally be defined as the single-point-ofentry watershed, but 26

27 What Has Changed? Tributaries Under current regulations and Rapanos, open question if intermittent or ephemeral tributaries were jurisdictional Proposed rule would define all tributaries as those with bed & banks and ordinary high water mark Final rule definition also requires bed & banks and ordinary high water mark, created by sufficient volume, frequency, and duration of flow 27

28 Ordinary High Water Mark Flow Indicators? 28

29 Bed and Banks Flow Indicators? 29

30 More on Tributaries Assuming they have OHWM and bed & banks that demonstrate contribution of flow, then washes, arroyos, and ephemeral drainages are jurisdictional by rule Tributary doesn t lose its jurisdictional status as a WOTUS if there is a break in the tributary, like a bridge, culvert, etc. Water without OHWM and bed & banks can still be jurisdictional on a case-by-case basis, even if not a tributary 30

31 What Has Changed? Adjacent Waters Under current regulations and Rapanos, wetlands adjacent to jurisdictional waters were also jurisdictional Proposed rule would cover adjacent waters that were bordering, contiguous, or neighboring Final rule limited adjacency by geography 31

32 More on Adjacent Waters Adjacent waters under proposed rule included waters in floodplain, within the same riparian area, and with shallow subsurface connection. This meant virtually any water in a watershed, which would be a huge number of waters in the arid west (because of huge floodplains). The final rule limited adjacency by geography an adjacent water is: (1) within the 100-year floodplain and within 1500 feet of the OHWM of a jurisdictional water; (2) any water within 100 feet of the OHWM of a jurisdictional water, no matter the location of the floodplain; or (3) any water within 1500 feet of the high-tide line of a tidally influenced water. The final rule still raises questions (e.g., why 1500 feet?) 32

33 Another Hot Topic in Final Rule - Ditches Proposed rule could have been read to include all ditches as jurisdictional, including roadside ditches, stormwater drainage ditches, and farming/irrigation ditches. The final rule addressed some of this concern ditches are only jurisdictional if they meet the definition for tributary and are not excluded. The final rule clearly excluded from jurisdiction any ditches with intermittent/ephemeral flow that haven t relocated streams and haven t been excavated in tributaries. 33

34 Possible Impacts of Rule on Development More waters are jurisdictional = potentially higher costs for new projects (i.e., obtaining permit; building fewer units at a development to avoid WOTUS) Corps only issues permits for the least environmentally damaging practicable alternative to a project. Consideration will need to include effects on all newly jurisdictional waters. More jurisdictional waters = more mitigation Will some property be undevelopable as a practical matter? Do these effects destroy the residual value of land? 34

35 Status of Litigation on the Clean Water Act s Waters of the United States Rule 29 states and other private parties have sued the federal government in various federal courts Sixth Circuit Case 1 On February 22, 2016, the 6th Circuit held it has jurisdiction to consider the validity of the Rule under the jurisdictional provisions of the CWA Petitions for a rehearing en banc on the jurisdictional question were filed by various industry groups in late February and March; The 6th Circuit has yet to rule on these Eleventh Circuit Case 2 The 11th Circuit issued an order staying the case pending the Sixth Circuit s decision on the question of whether it had jurisdiction to hear the case On February 23, 2016, Georgia requested that the 11th Circuit renew its review in light of the 6th Circuit s jurisdictional determination; The 11th Circuit has yet to rule District of North Dakota Case 3 In August, Judge Erickson held jurisdiction over the Rule is properly before the District Court On March 3, 2016, federal defendants filed a motion to dismiss based on the 6th Circuit s jurisdictional determination Nationwide preliminary injunction remains in place 35 1: In re: U.S. Dep t of Defense & U.S. Envtl. Prot. Agency Final Rule: Clean Water Rule, Nos /3822/3853/3887 (6th Cir.). 2: State of Georgia v. McCarthy, No (11th Cir.). 3: North Dakota, et al. v. EPA, et al., No. 3:15-cv-59 (D. N. Dak.).

36 Thank You Don Baur (202) Bill Malley (202)