SCI FYI: Regulation Rundown 2017
In this issue of SCI FYI, we are providing you with updates to regulations that you may commonly encounter on your projects. The topics in this issue cover:
Waters of the United States
The expiration and reissuance of Nationwide 404 Permits
The Waters of the US Rule
Threatened and Endangered Species Issues
Tree Clearing Restrictions
A newly-listed endangered species
Increased emphasis on Cultural Resources
For more information on these topics, please see the corresponding sections below.
WATERS OF THE UNITED STATES
2017 NATIONWIDE PERMITS
The current 2012 Nationwide Permits (NWP), administered by the U.S. Army Corps of Engineers (USACE) expired on March 18, 2017. The Nationwide permits are reviewed as a rule to the Clean Water Act, and are renewed no later than every five years. The permits are for minimal impacts to jurisdictional Waters of the United States. Some common NWPs authorize activities such as road crossings, stormwater outfalls, utility crossings, and minor piping and filling. For the 2017 update, the Corps is reissuing 50 permits and adding two additional permits. The two new permits, NWP 53 and 54, cover the removal of low-head dams, and the construction and maintenance of living shorelines, respectively. No changes to the amount of impact authorized under the most common nationwide permits will occur under the reissued permits. In some cases, the Corps will allow projects currently authorized under the 2012 nationwide permits to be completed within a specified time frame. If you have a project that was issued a NWP and you have not yet completed the project, please contact Mike Hartoin at 618-206-3026 or email@example.com, and he can help walk you through the process.
WATERS OF THE UNITED STATES RULE RESCINDED
On February 28, 2017, the president signed an executive order to rescind the Waters of the U.S. Rule. What is it and what does that mean for your project? The short answer: Not much for now.
Waters of the U.S. Rule – What is it?
The Waters of the U.S. Rule was introduced in 2015 as a regulation under the Clean Water Act of 1972 to further clarify two court cases from the early 2000s on what constitutes a jurisdictional Water of the United States. The cases focused on clarifying the jurisdictional nature of headwater streams and wetlands that have a significant nexus or connection to a navigable waterbody. Most types of these streams and wetlands were already federally protected under the existing Clean Water Act, and the EPA estimates that the Rule would only have increased the amount of protected waters by approximately 3 percent. The main opponents of the Rule are concerned with the impact that the new legislation may have on their properties and on future use of their sites for farming or development. The Rule was never officially implemented, as law suits from various groups challenging the Rule were submitted, and the Sixth U.S. Circuit Court of Appeals decided to postpone ruling on the Rule.
What does the new Executive Order mean?
The Executive Order signed on February 28, 2017 and published in the Federal Register on March 6, 2017 is a notice of intention to review and/ or revise the Clean Water Act ruling. The current rule was never implemented fully, and the revised rule will be subject to the same review process as the previous one. This will take time to gather supporting scientific data, rewrite the rule, go through the public notice period, and navigate through possible lawsuits once it is published. For now, while the laws may be changing, the current Section 404 permitting process is the same. SCI is closely watching these regulations to stay abreast of how they may affect your projects.
THREATENED AND ENDANGERED SPECIES
TREE CLEARING AND RESTRICTIONS
The typical seasonal tree clearing restriction timeframe, set forth by the U. S. Fish and Wildlife Service (USFWS) and/or USACE, starts on April 1, and continues until October 31 of a given year. The purpose of tree clearing restriction measures is to help protect the critical roosting habitat of the threatened northern long-eared bats (Myotis septentrionalis) and endangered Indiana bats (Myotis sodalis), as they roost and raise young in trees during the summer months. Tree clearing restrictions are a conservation measure utilized as part of the USFWS Section 7 or Section 10 Endangered Species Act (ESA) consultation process. Tree clearing restrictions are commonly put in place on projects where suitable forested bat habitat may be cleared and where a federal agency consultation or permit is required (i.e. Section 404 permit from the USACE or federal agency funding).
What does that mean for your project?
A few important points to remember in regard to the forested areas on your site: not all forested areas are considered suitable habitat, and not all forested requires tree clearing restrictions. While a mist net survey is not always required of projects, having the consultation prior to the summer survey period allows for smooth continuation of project schedules and avoidance of project delays.
How we can help:
The size of the site, quality of habitat, proposed acres of tree clearing, and site-surrounding properties factor into the determination of suitable habitat and subsequent tree clearing requirements. The start of the tree clearing restriction period is followed by the summer bat survey period. During this time, SCI is able to perform mist net surveys or acoustic monitoring surveys for presence and/or probable absence of the threatened and endangered bats. Habitat assessments can be performed year-round, however the summer mist net and/or acoustic survey can only be performed between May 15th and August 15th. SCI typically consults with the agencies on the possibility of suitable habitat on your project area. Additionally, a habitat assessment is considered a required piece of a complete Section 404 permit application.
RUSTY PATCHED BUMBLE BEE OFFICIALLY LISTED
On March 21, 2017, the USFWS officially listed the rusty patched bumble bee (Bombus affinis) as endangered throughout its range. The bees inhabit grasslands and tallgrass prairies with flowering plants to feed on nectar and pollen. Its historic range included states in the eastern United States, Upper Midwest, and southern Quebec and Ontario in Canada, however it is currently found in only 0.1% of those areas.
What does it mean for your project?
The current guidance suggests Section 7 and Section 10 consultation is required when projects are near the high potential zones of rusty patched bumble bee habitat. While the historic range includes Missouri and Illinois, as well as 29 other states, current populations were found to be well north of the St. Louis metro area. To see a map of the high potential zones where a consultation will most likely be necessary, visit the USFWS guidance website. If your project is in the vicinity of those areas, and contains suitable grassland habitat, a consultation and/or survey may be necessary.
SECTION 106 PROCESS – CULTURAL RESOURCES
CULTURAL RESOURCE CONSULTATIONS
Federally permitted or funded projects, such as those requiring USACE permits, trigger a Section 106 review by the State Historic Preservation Office (SHPO) of the state in which the project is occurring. The SHPO, through consultation, is given the opportunity to request a Cultural Resource Survey of all potentially affected property within the proposed project area. This consultation process is initiated with a Section 106 Correspondence request.
The Section 106 correspondence is comprised of a detailed description of the proposed project and a literature review conducted by a qualified archaeologist of previous research conducted within or near the project area. This review documents to the extent possible, known archaeological surveys, sites, and structures in the vicinity of the project area. The review also documents the geomorphological, environmental, and cultural history of the project area as they pertain to the evaluation of cultural resources.
Once submitted, the SHPO reviews the documentation and makes a determination. The SHPO has 30 days to reply to this notification by either clearing the project for cultural resources, or requesting a cultural resource survey.
What does that mean for your project?
We are seeing an increase in requests for Section 106 reviews resulting from the Section 404 permitting process. Additionally, a habitat assessment is considered a required piece of a complete Section 404 permit application. It is advantageous to initiate SHPO consultation as soon as possible in the event that the SHPO requests additional investigations in the form of a Phase One Cultural Resource Survey which potentially may impact the project timeline and layout of your development. If you have questions on the Section 106 process and how this may affect your project, please contact our Chief Archaeologist, Don Booth, at 618-206-3034 or firstname.lastname@example.org.