Clean Water Rule
On December 23, 2019, the Obama administration Waters of the United States rule was officially eliminated. The major change for our clients is that it reinstates the practice of “isolated wetlands” not being regulated by the US Army Corps of Engineers (Corps). Since 2001 Supreme Court SWANCC decision, isolated wetlands were not subject to federal regulation. It also means that the “significant nexus” test, a complicated analysis of whether a wetland should be regulated as a result of the Rapano Supreme Court decision was put back in effect.
On April 21, 2020, the long awaited, Navigable Waters Protection Rule was published in the Federal Register and it will take effect on June 22, 2020. All reference, to the significant nexus test has been eliminated. The major change for our clients is that regulated wetlands must abut (touch) a tributary to navigable waters. Any tributary that is regulated must have permanent flow or intermittent flow of water. If there is a question, whether a water has intermittent flow, then information on the hydrologic conditions in the area for the last 30-years must be considered.
Waters that will be excluded from this rule include what we used to call “isolated wetlands” since they do not connect (abut) to navigable waters. Ephemeral streams only contain water as a direct result of a precipitation event of snow melt are excluded. Also included in the term of ephemeral waters are swales, gullies, rills, and pools. Ditches constructed in wetlands could continue to be regulated provided the ditch meets the “intermittent” or “permanent” tributary test. We expect to have further guidance on the implementation of this rule as we get closer to June but the true test will occur as decisions are made by the Corps regulatory staff. The complete discussion leading to the changes to rule are presented in the April 21, 2020 Federal Register and provides a discussion on why the rule was implemented.
Water Quality Certificate – Waiting for the Final Rule
In New York State, when applying for a Corps wetland permit, you also must obtain 401 Water Quality Certificates (WQC) from the NYS Department of Environmental Conservation (NYSDEC). In most instances, if you demonstrate that your project, follows the standard erosion and sediment control practices and demonstrate that a stormwater pollution prevention plan has been prepared then obtaining the water quality certificate is a straightforward process.
However, an executive order “Promoting Energy Infrastructure and Economic Growth was issued by President Trump last year. One main purpose was to expedite, Water Quality Certificates for gas pipelines. Approval for gas pipelines and the proposed route is the responsibility of the Federal Energy Regulatory Commission. Unfortunately, the 401 Water Quality Certificate process has been a major stumbling block for three gas pipelines with the process taking several years of NYSDEC review. Three major pipeline projects were denied 401 WQC by the NYSDEC. As of this writing, a fourth pipeline proposed in the New York City area is also in NYSDEC limbo. As a result of New York’s actions in denying Water Quality Certificates for gas pipelines, the EPA proposed a new rule to limit states delaying federally approved energy projects and other Water Quality Certificates.
The proposed changes to 401 WQC will not affect most of our client’s projects because the NYSDEC issues these permits routinely. It would effect gas pipeline projects by limiting the amount of review time to one year that the NYSDEC can decide whether to issue 401 WQC and more significantly, it may allow the federal agency to issue a waiver over denial of WQC by state agencies. The public notice period for the proposed Water Quality Certificates ended in October. We’ll keep you posted when the final rule is published in the Federal Register.
Winter Raptor Survey
The NYS DEC has a requirement that development of large projects in grasslands in New York State require that winter raptor surveys be conducted. In particular, the northern harrier and the short-eared owls are the two primary species of concern. The short-eared owl occasionally nests in New York state but takes advantage of our relatively mild winters in contrast to its summer breeding territory in Canada. After returning from a winter raptor for survey, Delta Environmental Scientist, Elizabeth MacEwen spotted a snowy owl on a telephone pole. And not more than ten minutes later she spotted another snowy owl. Snowy owls are another bird that breeds in northern Canada that frequently spends its winter in northern New York.
