environmental laws affecting construction projects

SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868 1

(415) 454-8868SAN RAFAEL SAN DIEGO DENVER FORT BRAGG

The Seminar Group: Construction Law

Practical aspects of environmental regulation associated with construction industryMichael Josselyn, PhD, PWS

(415) 454-8868SAN RAFAEL SAN DIEGO FORT BRAGG DENVER EMERYVILLE

http://www.wra-ca.com/

http://bit.ly/16cfWVU



• Federal– Clean Water Act (Section 404)– Endangered Species Act– National Pollutant Discharge Elimination Act (NPDES)– Migratory Bird Treaty Act

• State– Porter Cologne Act– Fish and Game Code (1600)

Focus: Environmental Laws affecting construction activities




http://www.cicacenter.org/index.cfm

Source for basic information




Section 404 Clean Water Act

• Clean Water Act– Regulates dredged material discharges in “waters of the United

States”– Also regulates fill placement within special aquatic sites that

include wetlands and small streams– Extends to many features that are dry most of the year and in

some cases for many years• Interacts with other regulations

– Section 7 Endangered Species Act– Section 106 Historic and cultural resources– Section 401 State Water Quality – Coastal Zone Management Agency




Section 404 Jurisdiction

To many people, wetland determinations under CWA are a mystery




Section 10 and 404 boundaries




Issues frequently confronting construction industry

• Delineation of “waters of the US”– Has a delineation ever been prepared for the property– Type of delineation—Approved vs Preliminary– Expiration date of the delineation

• Permits that may have been filed – No permit required– Nationwide Permits

• Type of permit authorization– Automatic vs PCN

– Individual Permits– Conditions associated with permits

• Status of other approvals




Typical Delineation Map




SWANCC and Rapanos

• SWANCC – Isolated wetlands may

be outside CWA jurisdiction

– Vernal pools, potholes, and other features that lack a hydrologic connection

• Rapanos– Intermittent and

ephemeral tributaries may be outside CWA jurisdiction

– Significant Nexus test required for such tributaries and adjacent wetlands




Hawkes Supreme Court decision

• Before 2016 Hawkes Decision– JD could be contested through administrative channels only– Could not challenge court until final administrative action

taken—either issuance or denial of permit– Required substantial resources and time for applicants

• After Hawkes Decision– JD is considered a final agency action– JD can be challenged in court after administrative channels

taken– Corps issued new Regulatory Guidance Letter 16-01 to clarify

procedures• Hawkes may affect how Corps operates in issuing

AJDs and No Permit required letters




Section 404 Enforcement• Covered by 1989 Memorandum of

Agreement between Corps and EPA– Failure to comply with permit conditions– Discharge without a permit

• Administrative enforcement– Compliance actions– Fines up to $16,000 day/max of $187,500

• Judicial enforcement– Restoration as well as penalties– Criminal enforcement actions

• Sackett vs EPA– Supreme Court allows “pre-enforcement

review” of administrative compliance orders– http://nationalaglawcenter.org/wp-content/uploads/assets/crs/

R42450.pdf




Endangered Species Act

• Federal and state regulations affecting endangered and threatened species– Federal Standard: Killing or possession as well as habitat

modification– State Standard: Killing or possession only

• Species listed differ• Measures for protection differ

– Federal measures considered “reasonable and prudent measures”

– State measures considered as “fully mitigated”• Processing differ

– Federal consultation through Corps or directly with FWS/NMFS– State Incidental Take Permit




Issues affecting construction industry

• Increasing number of species– Federal list: 1361 species– State list: 140 species

• Some species have wide ranges of movement or are difficult to detect– May occur on property even though not expected to be present– Can cause considerable delay in construction

• Environmental Windows– Apply to many fish species and can affect aquatic work– May also dictate various seasonal mitigation measures

• Monitoring to be conducted by qualified biologists




Migratory Bird Treaty Act

• Protects migratory birds from take, possession, or kill– Originally signed to protect ducks and other hunted species– Today protects all birds (except for a few nuisance species)

• Courts are split on definition of “take”– Early decisions broadened the definition regardless of intent– Fifth, Eighth, and Ninth Courts of Appeal have focused on

intent• Inadvertent take from legal and normal business practices not

covered• Nest removal

– FWS issued guidance that removal of unoccupied nests not illegal– CDFW states that nest removal a violation of Fish and Game Code





• Removal of nest trees and protection of areas from nesting birds– Must be done during non-nesting season– Methods to keep birds from nesting in areas can still kill birds

• Window of avoidance is broad (Feb-August)• Preconstruction survey timing

– Narrow time period can lead to construction delay• Buffer from protected bird nests can vary

– Most are 100 to 250 feet– Raptors can be as much as 500 to 0.5 miles

• Conservation groups send out volunteers to report violations




State Wetland Regulation

• Normally performed through Section 401 Water Quality Certification– Part of Section 404 permit activity– Can add substantially more protective and mitigation

requirements• Wetlands not protected under federal law covered

under Porter Cologne Act– General Discharge Requirements for small fills (less than 0.2

acres)– Waste Discharge Requriements required for larger fills

• New state policy being proposed– Substantial criticism from building industry for duplication– Policy to be issued in 2017




CDFW expands “stream definition”

• Formerly state definition relied Fish and Game Code definition as “top of bank” and associated riparian habitats

• DFW expanded definition in 2014– No administrative procedures followed– Adopted new definition based on technical report by

Department– Includes areas where surface or subsurface flows currently or

in the past occurred– Includes flood plains– May include areas where organisms that are dependent on the

stream may reside.





• Expansion of definitions of wetlands and streams can create difficulty knowing where limits of work can be set

• No certainty whether permit required or not– Must apply to agencies and pay permit fees to receive no

permit required letter– Enforcement can lead to considerably delay

• Permit fees are increasing substantially– 10-40% to cover increased costs of programs including

enforcement• Mitigation requirements not consistent with

federal permitting agencies




SUMMARY

Environmental regulations are not static; are likely to changeat federal and state levels as new administration takes shape.

Due diligence and careful planning required




Michael Josselyn, [email protected]

