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Ongoing Fallout: WOTUS Litigation Pose Hurdles For Permit Applicants
WRITTEN BYJosiah Frey
In August of this year, the U.S. District Court of South Carolina halted a federal moratorium on the 2015 Obama era WOTUS rule for 22 states. As a result, two different federal definitions are being applied in states across the country as to what constitutes a “water of the US”. Naturally this is problematic for companies siting new facilities in different states. Applicants seeking permits with the U.S. Army Corps of Engineers in many Northeast, West Coast and some Midwest states like Ohio, Pennsylvania, Tennessee and Illinois are now required to follow the 2015 WOTUS rule. Most of the Midwest and Southeast states including Kentucky, West Virginia and Indiana are still under the pre-2015 WOTUS (7-27-17 EPA-Corps WOTUS Re-code) rule for wetlands and stream permitting.
In practice, this abrupt change is creating permitting uncertainty as regional Corps offices, consultants and permit applicants adjust to a tenuous WOTUS rule in Ohio, Tennessee and other affected states. Since the August court ruling put the 2015 WOTUS rule in place with no lead time, applicants are often assessing projects under the 2015 WOTUS Rule with little or no published guidance from the Corps. Unfortunately, little regulatory certainty is on the horizon as litigation is ongoing and a completely new rule is due for public comment in the coming months.
Going forward, permit applicants may want to coordinate with the Corps of Engineers even earlier than in years past when assessing potentially jurisdictional streams and wetlands. The rule changes and potential for additional changes may delay the Corps permitting process even further and require a longer lead time to development.
If you have questions about a site development and potential stream and wetland permitting needs, contact Josiah Frey 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.