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Permitting Regulated Waters of the U.S.: Steps you can take for project success while staying ahead of potential changes in regulations

posted 11.20.2014
Perennial StreamDo you have water features on your project site? You may have to consider potential impacts to these areas. Prior to the disturbance of jurisdictional waters, federal permitting and potentially mitigation are typically required by federal agencies. Some states have permitting and mitigation requirements in addition to the federal requirements. Terracon is often asked by our clients, “How long will water permitting take?” or “Will impacting an on-site ditch affect the project?” There is not a simple generic answer to these questions. Each site must be evaluated based on the specific federal and state regulations, type and extent of anticipated impacts, quality of the existing habitat, and scope of the project. The Summer 2014 Delivering Success article, Navigating Regulatory and Permitting Issues: Waters of the U.S., previously addressed the proposed Waters of the U.S. rule and how property owners can navigate the regulatory process related to water resources while optimizing developable land and minimizing costs. The following four steps address how to make your project a success while staying ahead of the potential changes in regulations. Be aware of potential regulatory changes – Navigating the regulatory process is always a challenge, and it is important to consult with your environmental professional prior to preparing a permit application as regulations frequently change. In April 2014, the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) jointly issued a proposed rule for defining Waters of the U.S. The intention of the proposed rule is to more clearly define Waters of the U.S. As defined in the proposed rule, Waters of the U.S. include traditional navigable waters and all waters that have a significant nexus to navigable waters and tributaries to navigable waters. The tricky part is that natural, man-made, or man-altered ditches, canals, and impoundments can potentially be considered tributaries to navigable waters, and impacts to these features potentially can require federal permitting. The proposed rule change has encountered opposition as a result of the anticipated increased cost of permitting and mitigations and the apparent expansion of regulation over waters of the U.S. As a result of the proposed rule change, the Waters of the United States Regulatory Overreach Protection Act of 2014 (H.R. 5078) was presented to the U.S. House of Representatives on July 11, 2014, and passed in the U.S. House of Representatives on September 9, 2014. H.R. 5078 is currently in the U.S. Senate for review. If H.R. 5078 becomes law, the USACE and EPA would be prevented from implementing and enforcing the new proposed rule. Hire a professional with permitting experience – Some state regulations require professionals to have experience assessing and permitting water resources. Some states also require professionals to obtain certifications before assessing whether waters may or may not be regulated. For example, as of July 1, 2014, the Tennessee Department of Environment and Conservation (TDEC) requires a Tennessee-certified Qualified Hydrologic Professional (QHP) to conduct hydrologic determinations prior to initiating the permitting process. Plan wisely and involve your natural resource professional early – Many clients come to us after the design phase has been completed and the permitting phase is in progress to find that they may have jurisdictional waters located on their project site. By involving your professional early in the process, assessment for potential jurisdictional waters can conclude prior to purchase, to avoid such surprises. Clients may avoid the unnecessary cost and project delays associated with federal and/or state permitting and mitigation by engaging Terracon early in the design process. For example, Terracon was contracted by the Huntsville City Board of Education as the environmental and geotechnical consultant for the Jemison High School and McNair Junior High project. After completing a site Mapreconnaissance for the Phase I ESA, Terracon reviewed the proposed site and determined that streams and wetlands may be present. The client further engaged Terracon to conduct a preliminary jurisdictional waters assessment, which concluded with the identification of intermittent streams and wetlands on site. With the assistance of Terracon, the design team was able to reconfigure the site design to minimize impacts to jurisdictional waters so that the amount of disturbance was kept within the limits of USACE Nationwide Permit, and no compensatory mitigation was required. “[Terracon’s] work has guided us through a difficult project that has included wetland assessment and USACE permitting … through diligent communication and an incredible team approach, our project has benefited greatly in no small part to Terracon’s involvement.”  Andy Bernard, Project Manager, TCU Consulting Services, LLC. Allow time for permitting – Permitting takes time and sometimes it can take six to 12 months and potentially up to two years to complete depending on the type(s) of permit(s) required. It is critical for project managers to plan accordingly and be prepared for potential permitting delays. In summary, bringing a natural resource professional to the project team early in the project conception phase, you may save time and money in the long run. Natural resource permitting should be included as part of the project schedule in order to avoid potential project delays. With an environmental professional on the project team, Terracon can assist you in staying abreast of regulatory changes that may affect the environmental permitting process. References: Definition of “Waters of the United States” Under the Clean Water Act. Federal Register Vol. 79, No. 76. April 21, 2014. Part II. Department of Defense. Environmental Protection Agency. Retrieved from http://www2.epa.gov/uswaters on October 6, 2014. Dudley, Sandra, Director, Division of Water Resources. Hydrological Determination Services. Tennessee Department of Environment and Conservation. June 16, 2014. Higgins, Sean. EPA contradicts itself with Clean Water Act rule, federal agency says. Washington Examiner.  October 7, 2014. Retrieved from http://washingtonexaminer.com/epa-contradicts-itself-with-clean-water-act-rule-federal-agency-says/article/2554465 on October 7, 2014. H.R.5078 – Waters of the United States Regulatory Overreach Protection Act of 2014.  Retrieved from https://www.congress.gov/bill/113th-congress/house-bill/5078 on October 7, 2014. Proposed “Definition of ‘Waters of the States’ Under the Clean Water Act” 40 CFR 230.3.  Retrieved from http://www2.epa.gov/uswaters on October 6, 2014.