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On February 14, 2018, the US Army Corps of Engineers (USACE) and U.S. EPA published the latest installment in the Waters of the U.S. (WOTUS) groundhog day saga. Promising regulatory certainty, the rule is notable for how similar it is to the 1986/1988 WOTUS definition. However, many in the regulated community will note that the proposed rule excludes ephemeral streams from federal jurisdiction, which is a change from the joint EPA and USACE 2008 memorandum that asserted jurisdiction over ephemeral streams.
This proposed regulation comes at a time when two different WOTUS definitions are currently enforced throughout the country, as I’ve written previously. If ever there was a need for regulatory certainty, it is now as permittees wrestle with a checkered regulatory landscape across state lines. But if the 2015 Obama-era WOTUS rule is anything to go by, we can expect the judicial branch to decide the fate of the proposed 2019 WOTUS rule.
A promising sign for prospective permittees is a recent USACE directive memorandum which would require state agencies to complete 401 Water Quality Certification (WQC) permitting decisions within 60 days of receipt of an application, instead of the 1-year window that is currently “standard practice.” Since USACE permits cannot be issued without 401 WQC permits, this memorandum could help expedite some federal permitting timelines. While most states have pre-authorized general 401 WQC permits already, watch for changes to individual WQC applications which typically take longer to process.
I will be providing a presentation on this topic at the Kentucky Chamber of Commerce’s 17th Annual Kentucky Environmental Conference on March 14, 2019 in Lexington, Kentucky. More information about this conference is on the Kentucky Chamber’s website. If you have specific questions about potential stream and wetland permitting needs, please contact me at firstname.lastname@example.org. Josiah is an Environmental Scientist at Smith Management Group.
New Facility Permitting
A large alcoholic beverage company was planning to construct a distillery along a lake in Kentucky and use the fresh limestone water for bourbon production. The proposed site was a former farm with historic activities dating back to the 1880s. A water intake structure was required in the lake and along the adjacent shoreline which was owned by others. Several ephemeral and intermittent streams would be impacted by the construction. The client needed a US Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 Permit, a Kentucky Division of Water 401 Water Quality Certification, a water withdrawal permit, a permit for construction in and along a stream, and a construction stormwater permit. Additionally, an air permit was required prior to construction for the aging warehouses, distillery equipment, and other emission units. Evaluation for cultural and historic resources and endangered species evaluations were required under the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).
As the construction proceeded and operations began, a number of operating permits and environmental and hazardous materials compliance plans were required. The project required coordination with the nearby city for drinking water use and industrial wastewater pretreatment and discharge. Recordkeeping and reporting were needed prior to facility personnel being mobilized to the site. Set up and management of environmental systems during the transition to full operations was needed.
During the planning and initial construction phases, SMG managed the environmental permitting and environmental compliance for the site. The process involved application preparation and coordination with multiple regulatory agencies including the USACE, Kentucky Division of Water, Kentucky Division of Air Quality, US Fish and Wildlife Services, Kentucky Department of Fish and Wildlife Resources, Kentucky Heritage Council, and local agencies. Permits included stream mitigation, cultural and historic resources investigation, coordination with state and federal Fish and Wildlife agencies, and State 401 water quality certification, and the Section 404 permit, which required wetland and stream delineation. SMG coordinated with the client’s project team to minimize stream impacts and to adhere to the schedule by expediting the permit processing. State stream construction, water withdrawal, and air permits were also obtained. SMG provided onsite observation to assess contractor compliance with the stormwater permit and managed environmental permit reporting.
During the later construction phase, SMG managed the environmental permitting and compliance for the new distillery. The initial environmental and hazardous material compliance plans (GPP, HMPC, and SWPPP) were prepared and applications for operating permits, such as industrial wastewater pretreatment and discharge and industrial stormwater discharge, were readied and submitted. SMG provided training to the initial employees regarding hazardous material management and groundwater/stormwater protection. SMG worked with the new Risk Manager for the site to transition responsibility for environmental and hazardous material compliance.
SMG’s management of the environmental planning and permitting for the facility, successfully supported the construction schedule and managed environmental compliance for the initial site operations. SMG continued to work with the owner to obtain remaining operational permits and to transition environmental compliance responsibilities to the new facility staff to support startup and initial operations. The facility was completed on schedule and provides a significant economic benefit to the surrounding community.