Chapter11 - Enviromental Regulations and Permitting

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AMERICAN RAILWAY ENGINEERING AND MAINTENANCE OF WAY ASSOCIATION Practical Guide to Railway Engineering

Environmental Regulations and Permitting

Chapter

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A R E M A C O M M I T T E E 2 4 - E D U C A T I O N & T R A I N I N G

Environmental Regulations and Permitting

Paul Bollinger

Bollinger, Lach & Associates Oak Brook, IL

[email protected]

Melvin Burda

Burlington Northern Santa Fe Railroad Fort Worth, TX

[email protected]

Paul Li, P. Eng.

UMA Engineering Ltd. Edmonton, AB.

[email protected]

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C H A P T E R 1 1 � E N V I R O N M E N T A L R E G U L A T I O N S A N D P E R M I T T I N G

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Environmental Regulations & Permitting

Most land development and improvement activities are regulated by an environmental regulation or law. Environmental regulations are fairly new, when compared to how long the railway industry has been around. Environmental laws are constantly changing and almost always getting stricter. In fact some regulations may have already changed by the time the reader reads this from when it was written. (Cautionary Note: The following is a general description and is not to be taken as all-encompassing.)

11.1 Introduction nformation in this chapter is general in nature and should only be used as a guide. A professional environmental consultant should be contacted or used to prepare an environmental assessment. Most information in this chapter is

United States-based, however, information on environmental regulations of Canada and Mexico has also been included. In addition, most regulatory discussions are on wetlands, however, additional information on issues, such as Phase I, hazardous waste, air quality, etc., is included.

11.2 Environmental Regulations of the United States

On January 1, 1970, the President of the United States signed the National Environmental Policy Act (NEPA) into law. This legislation established a national policy of encouraging productive

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and enjoyable harmony between our environment and us. As a result, other executive orders have followed, for example, the Clean Water Act, Pollution Control Standards Act, etc.1

11.2.1 Wetlands Regulations Jurisdictional wetlands are part of a classification recognized by government agencies known as �waters of the United States.� The term �waters of the United States� is: • All waters which are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

• All interstate waters including interstate wetlands; • All other waters such as intrastate lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds; the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: i. Which are or could be used by interstate or foreign travelers for recreational or

other purposes; or

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

iii. Which are used or could be used for industrial purpose by industries in interstate commerce;

• All impoundments of waters otherwise defined as waters of the United States under the definition;

• Tributaries of waters;

• The territorial seas;

• Wetlands adjacent to waters (as discussed later in this chapter). The term �adjacent� means bordering, contiguous or neighboring.

The traditional definition of a wetland is the transitional land between the terrestrial and aquatic environment where the water table is usually at or near the surface, or the land is covered by shallow water. Wetlands must have the following attributes:

1) At least periodically, the land supports predominantly hydrophytic vegetation;

2) The substrate is predominantly undrained hydric soil; and

3) The substrate is nonsoil and is saturated with water or covered by shallow water at some time of the growing season each year.2

1 Jain, R.K., L.V. Urban, G.S. Stacey and H.E. Balbach, 2002, Environmental Assessment, McGraw-Hill, Inc.

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Since European settlement began in the United States, millions of acres of wetlands were drained, dredged or filled so that by the mid-1980�s, almost 53% of the lower 48 states� wetlands had been eliminated. At that time, an estimated 104 million acres of wetlands remained, which amounts to approximately 5% of the country�s land surface.3 Traditionally, wetlands have been viewed as wild places, teeming with mosquitoes, venomous snakes and disease, while in reality they provide a number of valuable benefits. Some of these include: 1) Flood storage and conveyance, 2) Groundwater recharge, 3) Erosion reduction and sediment control, 4) Pollution control, 5) Wildlife habitat, 6) Recreation and education.

This listing only highlights a few of the many functions wetlands provide. The Illinois Department of Natural Resources (IDNR) Wetlands Program considers the full range of wetland functions and values when administering its wetland protection responsibilities.4 The United States Army Corps of Engineers (USACE) has been involved in regulating activities in navigable waterways through the granting of permits since the passage of the Rivers and Harbors Act of 1899. This program was meant to prevent obstructions to navigation. By the early 20th century, the USACE had regulatory authority over the dumping of trash and sewage. Passage of the Clean Water Act in 1972 greatly broadened the USACE�s role by giving them authority over dredging and filling in the �waters of the United States,� including many wetlands.5

U.S. Army CorpU.S. Army CorpU.S. Army CorpU.S. Army Corps of Engineers Regulatory Boundariess of Engineers Regulatory Boundariess of Engineers Regulatory Boundariess of Engineers Regulatory Boundaries The USACE Headquarters is located in Washington, DC. The following is a map of USACE divisions and districts. The divisions are further broken down by regional districts, as illustrated below.

2 Chinn, R., 1998, Wetland Delineation and Management Training Manual and References, Richard Chinn Environmental Training, Inc., Pompano Beach, FL. 3 Dahl, T.E., 1990, Wetland losses in the United States 1780s to 1980s, United States Department of the Interior, Fish and Wildlife Service, Washington, DC. 4 Illinois Department of Natural Resources, 2000, A Field Guide to the Wetlands of Illinois, Second Edition, Illinois Department of Natural Resources. 5 U.S. Army Corps of Engineers, Undated, Services for the Public-US Army Corps of Engineers, http://www.usace.army.mil/public.html.

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(From USACE web site: http://wwwusace.army.mil/divdistmap.html)

Sample of regulatory boundaries.

(From USACE web site: http://www.nad.usace.army.mil/regulatory.html) Please contact your local regulatory agency by visiting their web site at: http://www.usace.army.mil/where.html.

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Wetlands protection in the United States began with the 1972 Federal Water Pollution Control Act, now commonly referred to as the Clean Water Act (CWA). Section 404 of the CWA establishes the major federal program regulating activities in wetlands, and the 1977 Amendments significantly expand on the design of the Section 404 program, including exemption categories, the option of delegation of the 404 programs to states, and enforcement powers. The definition of a wetland is provided below.

11.2.2 Wetland Definition According to the 1987 Corps of Engineers Manual �the USACE and the EPA jointly define wetlands as: those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.� 6 There are three criteria that must be met for an area to be defined as wetland, they are: hydrophytic vegetation, hydric soil and wetland hydrology. The following wetland characteristics come from the Environmental Laboratory (1987): 1. Hydrophytic vegetation: Hydrophytic vegetation is defined as the sum total of

macrophytic plant life that occurs in areas where the frequency and duration of inundation or soil saturation produce permanently or periodically saturated soils of sufficient duration to exert a controlling influence on the plant species present.

Emphasis is placed on the assemblage of plant species that exert a controlling influence on the character of the plant community, rather than an indicator species. Thus, the presence of scattered individuals of an upland plant species in a community dominated by hydrophytic species is not a sufficient basis for concluding that the area is an upland plant community. Likewise, the presence of a few individuals of hydrophytic species in a community dominated by upland species is not a sufficient basis for concluding that the area has hydrophytic vegetation.

6 Environmental Laboratory, 1987, Corps of Engineers Wetland Delineation Manual, Technical Report Y-87-1, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS.

Photo taken by Bollinger, Lach & Associates, Inc.

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Caution must be used in determining whether an area is �vegetated� for the purpose of Section 404 jurisdiction; users must consider the density of vegetation at the site being evaluated. While it is not possible to develop a numerical method to determine how many plants or how much biomass is needed to establish an area as being vegetated or unvegetated, it is intended that the predominant condition of the site be used to make that characterization. This concept applies to areas grading from wetland to upland, and from wetland to other waters. This limitation would not necessarily apply to areas, which have been disturbed by man or recent natural events.

The �50/20 rule� is the recommended method for selecting dominant species from a plant community when quantitative data are available. The rule states that for each stratum in the plant community, dominant species are the most abundant plant species (when ranked in descending order of abundance and cumulatively totaled) that immediately exceed 50% of the total dominance measure for the stratum (tree, shrub, grass, forb and vine), plus any additional species that individually comprise 20% or more of the total dominance measure for the stratum. The dominant species is then combined across strata.

Many factors (ex. light, temperature, soil texture and permeability, man-induced disturbance, etc.) influence the character of hydrophytic vegetation. However, hydrologic factors exert an overriding influence on species that can occur in wetlands. Non-hydrophytic plants lacking morphological (form and structure of an organism), physiological (functional processes in an organism), and/or reproductive adaptations, cannot grow, effectively compete, reproduce, and/or persist in areas that are subject to prolonged inundation or saturated soil conditions.

The estimated probability that a species is likely to occur in a wetland and/or upland environment is called Plant Indicator Status. Categories were developed and defined by the United States Fish and Wildlife Service National Wetland Inventory and Reed (1988).7

Plant indicator status categories are as follows: i. Obligate wetland plants (OBL) � Plants that occur almost always

(estimated probability > 99%) in wetlands under natural conditions, but which may also occur rarely (estimated probability < 1%) in non-wetlands.

7 Reed, Jr., Porter B., 1988, National List of Plant Species That Occur in Wetlands: National Summary, U.S. Fish & Wildlife Service, Biol. Rep. 88(24).

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ii. Facultative wetland plants (FACW) � Plants that occur usually (estimated probability > 67% to 99%) in wetlands, but also occur (estimated probability 1% to 33%) in non-wetlands.

iii. Facultative plants (FAC) � Plants with a similar likelihood (estimated probability 33% to 67% percent) of occurring in both wetlands and non-wetlands.

iv. Facultative upland plants (FACU) � Plants that occur sometimes (estimated probability 1% to < 33%) in wetlands, but occur more often (estimated probability >67% to 99%) in non-wetlands.

v. Obligate upland plants (UPL) � Plants that occur rarely (estimated probability <1%) in wetlands, but occur almost always (estimated probability > 99%) in non-wetlands under natural conditions.

The wetland indicator categories should not be equated with, or to, degrees of wetness. For example, many obligate wetland species occur in permanently or semi-permanently flooded wetlands, but a number also occur and some are restricted to wetlands that are only temporarily or seasonally flooded (USFWS 1996).

2. Hydric soil: A hydric soil is saturated, flooded, or ponded long enough during

the growing season to develop anaerobic (occurring in the absence of free oxygen) conditions that favor the growth and regeneration of hydrophytic vegetation.

Hydric soils are: all histosols, soils in aquic suborders, aquic subgroups, albolls suborder, salorthids great group or pell great groups of vertisols, soils that are ponded for long or very long duration during the growing season and soils that are frequently flooded for long duration or very long duration during the growing season.

Hydric soil indicators are characteristics found in the field. • In non-sandy soils hydric soil indicators include:

o Organic soils,

o Histic epipedons,

o Sulfidic material,

o Aquic or peraquic moisture regime,

o Reducing soil conditions,

o Soil color (Gleyed soils, which are grey in color, soils with bright mottles and/or low matrix chroma),

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o Soils appearing on hydric soils list and iron and manganese concretions.

• Hydric soil indicators in sandy soils include:

o High organic matter content in the surface horizon,

o Streaking of subsurface horizons by organic matter,

o Organic pans.

For defining technical soil terms please refer to �Field Indicators of Hydric Soils of the United States.�8 Caution: In recently deposited sandy material (for example sandbars), it may be impossible to find any of these indicators. Please note, the Natural Resource Conservation Service (NRCS) has developed regional lists of �Field Indicators of Hydric Soils in the United States.�

3. Wetland Hydrology: The term �wetland hydrology� encompasses all

hydrologic characteristics of areas that are periodically inundated or have soils saturated to the surface at some time during the growing season. Areas with evident characteristics of wetland hydrology are those where the presence of water has an overriding influence on characteristics of vegetation and soils due to anaerobic and reducing conditions, respectively. Such characteristics are usually present in areas that are inundated or have soils that are saturated to the surface for sufficient duration to develop hydric soils, and support vegetation typically adapted for life in periodically anaerobic soil conditions. Hydrology is often the least exact of the parameters, and indicators of wetland hydrology are sometimes difficult to find in the field. However, it is essential to establish that a wetland area is periodically inundated or has saturated soils during the growing season.

An area has wetland hydrology if it is inundated or saturated to the surface continuously for at least 5% of the growing season in most years (50% probability of recurrence).

Hydrology indicators may include, but are not necessarily limited to: drainage patterns, drift lines, sediment deposition, watermarks, stream gage data and flood predictions, historic records, visual observations of saturated soils, and

8 Hurt, G.W., P.M. Whited and R.F. Pringle, 1998, Field Indicators of Hydric Soils in the United States, Version 4.0, United States Department of Agriculture, Natural Resources Conservation Service, Wetland Science Institute and Soil Survey Division, in cooperation with the National Committee for Hydric Soils.

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visual observation of inundation. Any of these indicators may be evidence of wetland hydrology characteristics.

11.2.3 Wetland Regulations Section 404, jointly administered by the U.S. Army Corps of Engineers (USACE) and the U.S. Environmental Protection Agency (USEPA), regulates the discharge of dredged or fill material into �waters of the U.S.,� which include wetlands. Discharge of dredged or fill material requires a permit from the USACE based on regulatory guidelines developed in conjunction with USEPA. Failure to obtain a permit or comply with the terms of a permit can result in civil and/or criminal penalties. There are three types of permits for activities in wetland areas: Nationwide, General and Individual. All three are reviewed by the USACE, as well as other government agencies. 1. Nationwide permits set the national wetland standards. There are 43

authorized activities specified, which give general and specific conditions. 2. General permits are issued when the local Corps district requires specific

regulations not covered by a nationwide permit. This includes regional permits.

3. Individual permits are required for large projects that cause significant wetland impact potential. They are open to public comment and usually require mitigation. The review process for an individual permit is usually extensive and takes longer than nationwide or regional permits.

NatioNatioNatioNationwide Permitsnwide Permitsnwide Permitsnwide Permits General permits that apply nationwide (or throughout the country) are termed as �Nationwide Permits (NWP).� The following are some sample descriptions of Nationwide Permits that may be associated with railway activities. They include NWP 7 (Outfall Structures and Maintenance Projects), NWP 12 (Utility Line Activities), NWP 14 (Linear Transportation Projects), NWP 39 (Residential, Commercial and Institutional Developments) and NWP 41 (Reshaping Existing Drainage Ditches).9 Nationwide Permit No. 7, Outfall Structures and Maintenance Projects: NWP No. 7 is required for the construction of outfall structures and associated intake structures where the effluent from the outfall is in compliance with the National

9 U.S. Army Corps of Engineers, Undated, Nationwide Permit Summary, U.S. Army Corps of Engineers, Albuquerque District.

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Pollutant Discharge Elimination System Program (Section 402 of the CWA). This NWP is required for activities related to maintenance excavation, including:

• Dredging, to remove accumulated sediments blocking or restricting outfall and intake structures,

• Accumulated sediments from small impoundments associated with outfall and intake structures, and

• Accumulated sediments from canals associated with outfall and intake structures.

Nationwide Permit No.12, Utility Line Activities: NWP No. 12 is required for activities required for the construction, maintenance and repair of utility lines, including outfall and intake structures. Construction, maintenance or repair of utility lines is permittable only if there is no change in pre-construction contours. A �utility line� is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent or slurry substance, for any purpose. In wetlands, the top 6� to 12� of the trench should be backfilled with topsoil from the trench. Nationwide Permit No. 14, Linear Transportation Projects: NWP No. 14 is required for activities required for the construction, expansion, modification or improvement of linear transportation crossings (e.g., railways, roadways, etc.) in waters of the United States, including wetlands if the activity meets the following criteria:

a. This NWP is subject to the following acreage threshold where a preconstruction notification is required:

1) For linear transportation projects in non-tidal waters, provided the discharge does not cause the loss of greater than ½-acre of waters of the United States; or

2) For linear transportation projects in tidal waters, provided the discharge does not cause the loss of greater than 1/3-acre of waters of the United States.

b. The permittee must notify the District Engineer if any of the following criteria are met:

1) The discharge causes the loss of greater than 1/10-acre of waters of the United States; or

2) There is a discharge in a special aquatic site, including wetlands.

c. The notification must include a compensatory mitigation proposal to offset permanent losses of waters of the United States, to ensure that those losses result only in minimal adverse effects to the aquatic environment and a statement describing how temporary losses will be minimized to the maximum extent practicable;

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d. For discharges in special aquatic sites, including wetlands, and stream riffle and pool complexes, the notification must include a delineation of the affected special aquatic sites;

e. The width of the fill is limited to the minimum necessary for the crossing;

f. This permit does not authorize stream channelization, and the authorized activities must not cause more than minimal changes to the hydraulic flow characteristics of the stream, increase flooding, or cause more than minimal degradation of water quality of any stream (see General Conditions 9 and 21);

g. This permit cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations or air craft hanger; and

h. The crossing is a single and complete project for crossing waters of the United States. Where a road segment (i.e., the shortest segment of a road with independent utility that is part of a larger project) has multiple crossings of streams (several single and complete projects), the Corps will consider whether it should use its discretionary authority to require an Individual Permit as a single and complete project.

Nationwide Permit No.39, Residential, Commercial and Institutional Developments: NWP No. 39 is required for discharges of dredged or fill material into non-tidal waters of the United States, for the construction or expansion of residential, commercial, and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to roads, parking lots, garages, yards, utility lines, stormwater management facilities and recreation facilities. Examples of commercial developments include industrial facilities and business parks. Institutional developments include government office buildings and public works buildings. The activities listed above are allowable under the permit, provided the activities meet all of the following criteria:


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a. The discharge does not cause the loss greater than ½-acre of non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters.

b. The discharge does not cause the loss of greater than 300 linear feet of a stream bed.

c. The discharge causes the loss of greater than 300 linear feet of intermittent stream bed.

d. For discharges in special aquatic sites, the notification must include a delineation of affected special aquatic sites including wetlands.

e. The discharge is part of a single and complete project.

f. The permittee must avoid and minimize discharges into waters of the United States at the project site to the maximum extent possible.

g. Any combined total permanent loss of waters of the United States exceeding 1/10-acre requires that the permittee notify the District Engineer.

h. If there are any open waters or streams within the project area, the permittee will establish and maintain, to the extent practicable, wetlands or upland vegetated buffers next to those open waters or streams. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site.

Nationwide Permit No.41, Reshaping Existing Drainage Ditches: NWP No. 41 is required for discharges of dredged or fill material into non-tidal waters of the United States, to modify the cross-sectional configuration of currently serviceable drainage ditches constructed in waters of the United States. The reshaping of the ditch cannot increase drainage capacity beyond the original design capacity. Nor can it expand the area drained by the ditch as originally designed. Compensatory mitigation is not required because the work is designed to improve water quality (for example, by regarding the drainage ditch with gentler slopes, which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other substances by vegetation, etc.).

The following table illustrates some Nationwide Permits (NWPs) with their Pre-construction Notification (PCN) threshold. Pre-construction Notifications are discussed in detail later in this chapter.

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Title/Description Example PCN Threshold

7 Outfall Structures and Maintenance:

- Added removal of accumulated sediments from intakes, outfalls, and canals.

Construction, removal or repair of intake and outfall structures.

All activities.

12 Utility Activities:

- Added substation.

- Added foundations for overhead utility line towers, poles, and anchors.

- Added permanent access roads for utility line maintenance.

Construction of a storm sewer pipe extending through a wetland.

1/10 acre (substations); 500 linear feet of above-grade access road; impervious roads.

14 Linear Transportation Crossings:

- Added larger crossings for public projects only.

- No change for private roads and public crossings in tidal waters and non-tidal wetlands adjacent to tidal waters.

Construction of railway tracks extending through a wetland or a bridge over a �waters of the U.S.�

1/10 acre; discharges into special aquatic sites.

39 Residential, Commercial and Institutional Developments:

- Building pads, building foundations and attendant features.

Construction of buildings in wetlands.

1/10 acre; all below Ordinary High Water Mark.

41 Reshaping Existing Drainage Ditches:

- Modify cross-section of currently serviceable drainage ditches.

- Cannot increase drainage or flows or relocate ditch.

Cutting the sideslopes of a drainage ditch and dumping the excavated material into the ditch.

Side cast into waters of the U.S.;

Reshape greater than 500 linear feet.

A pre-construction notification (PCN) is the notice provided to Federal and state agencies which requests comments concerning a proposed activity. A USACE notification or PCN should include (but not limited to) the following:10

1) A cover letter, which provides a clear project purpose and need statement, a brief description of the proposed activity, the nationwide or regional permit(s) to be used for the activity, the area (in acres) of waters of the United States to be impacted, and a statement that the terms and conditions of the NWP or Regional Permit Program will be followed;

10 U.S. Army Corps of Engineers, 2001, Chicago District Regional Permit Program, U.S. Army Corps of Engineers, Chicago District.

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2) A completed joint application form signed by the applicant or agent. If the agent signs, notification shall include a signed, written statement from the applicant designating the agent as its representative;

3) Conduct a delineation prepared in accordance with the current USACE methodology (1987 Corps Manual), as generally conducted during the growing season, of the waters of the United States, including wetlands, for the project area and for areas adjacent to the project site;

4) Map showing the location of the project area; 5) Preliminary engineering drawings showing all aspects of the proposed

activity and the location of water of the United States to be impacted and not impacted. The plans shall include grading contours; and proposed and existing structures such as railway crossings, building footprints, construction access areas, utilities, stormwater management facilities, etc.;

6) A preliminary soil erosion and sediment control plan; 7) Evidence that the United States Fish and Wildlife Service (USFWS) was

contacted regarding the presence of any Federally listed (or proposed listing) endangered or threatened species or critical habitat in the area that may be affected by the proposed activity;

8) List of names and addresses of surrounding property owners. Compensatory mitigation is sometimes required to offset permanent fills to waters of the United States. A minimum one for one ratio is required for all wetland impacts requiring a PCN. The mitigation could be the creation of a constructed on-site wetland or the purchase of wetland mitigation credits in an approved wetland bank. Partial credit may be granted with the use of Better Management Practices (BMPs).

General PermitsGeneral PermitsGeneral PermitsGeneral Permits General permits are issued when the local Corps district requires specific regulations not covered by a nationwide permit, such as regional permits. Regional permits are for activities with minimal individual and cumulative impacts on the aquatic environment. For example, in the Chicagoland area, activities fall under one of two categories:

I) Category I � Activities with limited impacts requiring minimal review. II) Category II � Activities with minimal impacts requiring a more

rigorous review.

Regional Permit No. 1 is for residential, commercial and institutional developments. Regional Permit Number 1, Category I, impacts < 0.25 acre of wetland and Regional Permit Number 1, Category II, impacts 0.25 to 2 acres of waters of the United States or impacts high-quality aquatic resources. Individual

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Permits may be required for impacts over 2 acres. Mitigation is required for impacts over 0.25 acres at a minimum of 1.5:1 replacement. In addition, some local regulations may apply. For example, in DuPage County, Illinois, the County regulates all activities in wetlands, and mitigation is required for all impacts. The County�s jurisdiction supercedes the USACE�s jurisdiction. While, a USACE permit is still required, if the County�s permit is approved, the USACE�s permit will be approved.

USACE NonUSACE NonUSACE NonUSACE Non----Jurisdiction Over Isolated WetlandsJurisdiction Over Isolated WetlandsJurisdiction Over Isolated WetlandsJurisdiction Over Isolated Wetlands On January 9, 2001, the U.S. Supreme Court issued its opinion in the Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (USACE). The Court ruled 5-4 against the USACE and EPA and in favor of SWANCC, overturning the USACE�s requirement for a Clean Water Act Section 404 permit for the construction of a landfill involving the fill of isolated wetlands at a former gravel mining site.11 As a result, the primary effect of the decision is that the Migratory Bird Rule, under which the USACE asserted jurisdiction over isolated wetland areas, non-navigable and completely intrastate waters based solely on the presence or potential presence of migratory birds, is no longer valid. Therefore, isolated wetlands are no longer jurisdictional to the USACE. All tributaries to Waters of the United States (such as interstate waters, tidal waters, etc.) as well as wetlands contiguous to and adjacent to those tributaries are still regulated. To be contiguous or tributary, there must be a continuous surface water connection between the two aquatic areas. This surface water connection can be either surface flowing water at regular intervals of time, or a continuum of wetlands between the two areas. Groundwater, surface overflow of extreme precipitation events, or tiling do not constitute surface water connections. A culvert under a road fill connecting two aquatic areas would constitute a surface water connection, provided the culvert is not excessively long. Excessively long piping between two aquatic areas would not constitute a surface water connection. The term �excessively long� is defined on a case-by-case basis by the USACE reviewer. In addition, any natural stream that is placed in a culvert for extended lengths, with waters on each end, would continue to be considered a tributary. States are moving fast to regulate isolated wetlands (non-jurisdictional to the USACE). For example, recently Lake County, Illinois has adopted an ordinance, which regulates all wetland areas that are not regulated by the USACE. If a wetland is identified on the site and is considered isolated, a permit by the USACE is not required, however, a Lake County Watershed Development Permit is required.

11 Miller, Z.C. and C. Kamper, 2001, Memorandum, Regarding Supreme Court Decision in SWANCC, http//www.dgslaw.com/articles/347951.html.

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11.2.4 Best Management Practices Best Management Practices (BMPs) are policies, practices, procedures or structures implemented to mitigate the direct and indirect degradation of surface water quality from an activity. BMP�s are required for all permits, to the extent possible. BMPs include non-structural elements, such as the preservation of existing natural areas (floodplains, streams, wetlands, prairies, woodlands and native soils) and drainageways, and structural elements. Structural elements include vegetated swales, filter strips and infiltration trenches, which are designed to remove pollutants, reduce runoff rates and velocity, and protect aquatic resources. Another BMP is to limit the amount of impervious surface area through practices such as reducing road widths and clustering developments designed around open space. In addition, a project should use the following structural BMPs, if appropriate, both individual lots and the overall site to the maximum extent practicable:

1) Lot controls: grassed swales, underground sand filter, infiltration trenches, vegetated filter strips, vegetated natural buffers, level spreaders, dry wells or roof downspout systems, rubber rooftops.

2) Site controls: wetland detention, wet bottom detention, grass swales, infiltration basins, vegetated swales, vegetated natural buffers, level spreaders, curb cuts, leaky berms.

Applicants who protect water quality and minimize run-off by designing and implementing a comprehensive and coordinated use of BMPs throughout the project site may receive partial compensatory wetland mitigation credit. For additional BMP�s, please refer to the Illinois Urban Manual.12

11.2.5 Endangered Species Section 10 of the Endangered Species Act is designated to regulate a wide range of activities affecting plants and animals designated as endangered or threatened, and the habitats upon which they depend. The Act prohibits many activities affecting these protected species unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service. Parts of the Act make it unlawful to take (which includes harm, harass, pursue, hunt, shoot, wound, kill, trap, capture or collect any wildlife within the United States); remove

12 U.S. Department of Agriculture, Natural Resource Conservation Service, 1995, Illinois Urban Manual, A Technical Manual Designed for Urban Ecosystem Protection and Enhancement, Illinois Environmental Protection Agency, Springfield, IL.

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and reduce to possession any plant from areas under Federal jurisdiction; maliciously damage or destroy an endangered plant on areas under Federal jurisdiction; and remove, cut, dig up, or damage or destroy any endangered plant in knowing violation of any state law or regulation or in the course of a violation of a state criminal trespass law. These prohibitions apply equally to live or dead animals or plants, their progeny (seeds in the case of plants), and parts or products derived from them. An �endangered species� is any animal or plant that is in danger of extinction. A �threatened species� is any animal or plant that is likely to become endangered in the near future. �Critical habitat� is a geographic area which maintains biological/physical features essential to conservation of the species and which may require special management, consideration or protection. A take permit allows for the taking of listed species that may result from a lawful development activity. Take permits are issued by the United States Fish and Wildlife Service and/or the National Marine Fisheries Service. Applying for a take permit requires a completed application form, any necessary supporting materials and an application fee.13 Coordination should occur as early as possible and usually occurs in conjunction with other project permits or authorizations such as Corps of Engineers or Coast Guard Permits, Bureau of Land Management Easements and NPDES (construction) Permits.14 In addition, no activity is authorized under any NWP, which is likely to jeopardize the continued existence of a state or federally listed threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act, or which will destroy or adversely modify the critical habitat of such species.

13 U.S. Fish and Wildlife Service, Undated, Permits for Native Species, Under the Endangered Species Act, U.S. Department of the Interior and the U.S. Fish and Wildlife Service. 14 AREMA Committee 13, 2001, Environmental Permitting Issues on Railroad Construction Projects, Conference Notes, Overland Parks, KS, AREMA, 8201 Corporate Drive, Suite 1125, Landover, MD 20785-1420.

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Examples, proposed construction in close proximity to Lakeside Daisy habitat or proposed placing of fill materials in waterway that�s known to harbor the Humpback Sucker.

Photos taken from U.S. Fish and Wildlife Service: Endangered Species web site.

Federally Threatened Lakeside Daisy (Hymenoxys herbacea (=acaulis var. glabra))

Federally Endangered Humpback Sucker (Xyrauchen texanus)

For more information visit the web at:

http://endangered.fws.gov/

For regional information visit:

http://offices.fws.gov/

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11.2.6 Cultural Resources A cultural resource is any phenomenon associated with prehistoric or historical events, themes or individuals. They are in most cases unique, fragile and non-renewable. The basis for all subsequent historic preservation legislation lies within the National Historic Preservation Act (NHPA) of 1966.15 Section 106 of the NHPA requires all Federal Agency �undertakings� to �take into account� their effect on historic properties. An �undertaking� is defined to cover a wide range of Federal or state permitting, funding and licensing activities. Professional archaeologists who meet the Federal standards set forth in the Secretary of the Interior�s Professional Qualifications Standards may conduct Federal surveys, while those meeting the state standards may conduct state surveys. The applicant is responsible for obtaining and paying for such services. If no sites are found or the sites found are not eligible for the National Register, the project may proceed. Occasionally, a significant archaeological site may be encountered. In such a case the agencies will work with the applicant to protect both the cultural resources and to facilitate the completion of the project. Additional federal legislation restricting or limiting activities defined as a cultural resource (which are archaeological, prehistoric or historic sites, structures and/or artifacts that provide information on the ritual, spiritual, developmental and/or organizational structure of a past civilization or group of inhabitants) include:

• The Antiquities Act of 1906 authorizes the President to establish, at his discretion, national monuments on federally owned or controlled lands. The Secretaries of the Interior, Agriculture and Defense are authorized to grant permits to institutions for examination, excavation, and gathering of antiquities under their respective jurisdiction. A criminal provision is established for unauthorized excavation, collection or destruction of any antiquity owned or controlled by the Government.

• Historic Preservation Act of 1966 sets up a national framework for historic preservation, requiring the federal government to establish a nationwide system for identifying, evaluating, protecting and rehabilitating �historic places.�

15 Illinois State Historic Preservation Office, 1997, Protecting Illinois� Cultural Resources, An Introduction to Archaeological Surveys, Illinois State Historic Preservation Office.


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• Native American Graves Protection and Repatriation Act

• Archaeological Resource Protection Act.

In addition, check with local authorities in your area. For example, Illinois has several other acts to protect cultural resources: the Illinois Archaeological and Paleontological Resources Protection Act; the Human Skeletal Remains Protection Act; and the Revised Illinois State Agency Historic Resources Preservation Act. As of 1990, the State Agency Historic Resources Preservation Act requires the same for all private or public undertakings. Some examples of cultural resources are: historic buildings/districts, burial sites, campsites, spiritual sites, churches/cemeteries, trails, tunnels, towers, bridges and miscellaneous structures.

11.2.7 Phase I Environmental Assessment

The Phase I Environmental Assessment is an essential first step in determining whether contamination exists on a property. It is important that a Phase I environmental assessment is completed before proceeding with additional site investigation activities. A Phase I Environmental Assessment is a report that includes record reviews, interviews and physical property inspections to identify areas of potential hazardous substance contamination. The following is an example of details that may be included in a Phase I environmental assessment:

1) Property overview: Property information, geographic features and potential receptors/environmentally sensitive areas.

2) Property history: Site specific conditions (past and present): Products (for example, abandoned drums of pesticides, etc.), waste inventory, waste disposal processes and recycling or reuse, bulk storage tanks, chemical and waste storage areas, disposal sites.

3) Regulatory history: Present activities of owner/operator, permits, inspections, hazardous substance/hazardous chemical inventory and regulatory compliance history.

4) Environmental investigations and cleanups: Environmental cleanups, environmental assessments.

5) Physical reconnaissance: Investigators investigate by conducting interviews and a field reconnaissance, and evaluating current and past site activities.

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6) Visual and physical inspection: • Buildings interior and exterior, • Facility grounds and areas of concern, which include

o Rail spurs or sidings,

o Above or below ground pump stations,

o Sumps,

o Pits,

o Rail or truck loading/unloading docks or areas,

o Storage pads and areas including drum and waste storage,

o Dumpsters,

o Chemical storage cabinets or closets,

o Underground storage tanks and associated piping,

o Above ground storage tanks and associated piping,

o Silos,

o Transformers and capacitors (containing pcbs),

o Underground piping,

o Storm water retention ponds and fire protection water ponds,

o Air vents and ducts,

o Roof drains,

o Stained areas (pavement, soils, wall, etc.),

o Stressed vegetation,

o No vegetation,

o Drainage depressions,

o Pools of liquid,

o Areas of fill material,

o Areas where chemicals were mixed and loaded,

o Areas where machinery was washed and tanks were rinsed,

o All disposal sites identified in site specific conditions,

o Hazardous substance release documentation on and off-site,

o Asbestos-containing materials,

o Lead based paints, and

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o Hazardous materials.

7) Property maps.16

For more information go to:

http://www.epa.gov/

11.2.8 Hazardous Waste

The Compensation and Liability Act (CERCLA), also known as �superfund,� has four objectives. They are:

1) To provide the enforcement agency the authority to respond to the releases for hazardous wastes (as defined in the Federal Water Pollution Control Act, Clean Air Act, Toxic Substances Control Act, Solid Waste Disposal Act and by the administrator of the enforcement agency) from �inactive� hazardous waste sites which endanger public health and the environment.

2) To establish a Hazardous Substance Superfund.

3) To establish regulations controlling inactive hazardous waste sites.

4) To provide liability for releases of hazardous wastes from such inactive sites.

CERCLA amends the Solid Waste Disposal Act. It is a response to the concern for the dangers of negligent hazardous waste disposal practices. One provision authorizes the EPA to act when there is a release or threat of release of a pollutant from a site, which may endanger public health. Such action may include �removal, remedy and remedial action.� Superfund Amendments and Reauthorization Act (SARA) is an extension of CERCLA, which provides for �emergency planning and preparedness, community right-to-know reporting and toxic chemical release reporting.� There are key provisions, which apply when a hazardous substance is handled, and when an actual release has occurred. Even before any emergency has arisen, certain information must be made available to state and local authorities and to the general public upon request. Facility owners and operators are obligated to provide information pertaining to any regulated substance present on the facility

16 Wisconsin Department of Natural Resources, Undated, Phase I Environmental Assessment for Voluntary Parties and Lenders, http://www.dnr.state.wi.us/org/aw/rr/cleanup/fs3-2.html.

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to the appropriate state or local authorities. Three types of information are to be reported to the appropriate state and local authorities:

1) Material Safety Data Sheets (MSDS): They are prepared by the chemical manufacturer of any hazardous chemical and are retained by the facility owner or operator. These sheets contain general information on a hazardous chemical and provide an initial notice to the state and local authorities.

2) Emergency and hazardous chemical inventory forms, which are submitted annually to the state and local authorities.

3) Toxic chemical release reporting, which releases general information about effluents and emissions of any �toxic chemicals.�

In the event that a release of a hazardous substance does occur, a facility owner or operator must notify the authorities. This notification must identify the hazardous chemical involved; amounts released; time, duration, and environmental fate; and suggested action. The Resource, Conservation, and Recovery Act require that generators, transporters, treaters, storers and disposers of hazardous waste provide information to the state environmental agencies. The state agencies then provide the information to regional and national United States EPA offices. Additional information can be found at: http://epa.gov/enviro/html/hazard.html

11.2.9 Brownfields The United States Environmental Protection Agency has defined Brownfield sites as �abandoned, idled or underused industrial and commercial facilities where expansion or redevelopment is contaminated.� The EPA established its Brownfield Economic Redevelopment Initiative to empower states, communities, and other stakeholders in economic revitalization to work together to accomplish the redevelopment of such sites. Many states and local jurisdictions also help businesses and communities adapt environmental cleanup programs to the special needs of Brownfield sites. For more information contact: Brownfields Technology Support Center hotline at: 1-877-838-7220

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11.2.10 Asbestos

Asbestos is the name used to describe a group of natural mineral fibers that are known for their strength and fire-resistant properties. Asbestos has been used in thermal insulation and fire proofing for the construction industry, and in brake and clutch linings for the automotive industry. Some asbestos fibers are so small, that a microscope is necessary to see them. These small fibers can float or be suspended in the air, and can be breathed deeply into the lungs, where they can become lodged. Inhaling asbestos fibers increases the chances of developing lung cancer, mesothelioma and asbestosis, which cause shortness of breath and coughing. Areas with the possibility of containing asbestos, set for demolition and/or construction, are regulated under the National Emission Standards for Hazardous Air Pollutants (NESHAP). A qualified asbestos hygienist must survey the areas. Airborne pollutants must be surveyed and reported to the EPA and/or local governing agency fourteen days prior to the start of work when a permit is required. There are strict standards for the removal of asbestos. The area must be monitored (pre and post conditions). If asbestos is released, then there must be an explanation. A qualified person must be hired to conduct the monitoring, which must be conducted according to the Occupational Safety and Health Administration (OSHA) standards. For contact information contact the Environmental Health and Safety Online at: EHSO, Inc., Roswell Road, Atlanta, GA 30350 Telephone: 770-645-0788

11.2.11 Air Quality The Clean Air Act (CAA) of 1970 was established �to protect and enhance the quality of the Nation�s air resources so as to promote public health and welfare and the productive capacity of its population.� The major provisions of the act are intended to set a goal for cleaner air by setting national primary and secondary ambient air quality standards. These standards define levels of air quality necessary to protect public health, while secondary standards define levels necessary to protect the public welfare from any known or anticipated adverse effects of pollutants. Title I of the CAA describes air pollution control requirements for geographic areas in the United States which have failed to meet the National Ambient Air Quality Standards (NAAQS). These areas are known as nonattainment areas. Nonattainment areas are areas of the country where air

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pollution levels persistently exceed the national ambient air quality standards. Designated nonattainment pollutants are included below:

• Ozone • Carbon Monoxide • Nitrogen Dioxide • Sulfur Dioxide • Particulate Matter • Lead

A designated nonattainment area may have some restrictions to bring the area back to a designated attainment area (an area meeting the National Ambient Air Quality Standards). Restrictions may include restricting the number of hours a certain piece of equipment may be used, etc. Air quality is well regulated and it differs from state to state. For example, in Illinois, a greater than 1500 hp internal combustion engine is regulated, and in California, a greater than 50 hp engine is regulated. Air quality regulations must be taken into account when construction begins. For example, construction issues to keep in mind are asbestos, lead, etc. In addition, any visible dust is a violation. Check with the local authorities. Details of the Clean Air Act can be viewed at: http://www.epa.gov/region5/defs/heml/caa.htm The EPA has regional offices responsible for selected states� execution of the Agency�s programs. The following map illustrates states within specific EPA regions (for example EPA Region 10 includes the states of Idaho, Oregon, Washington and Alaska).17 Additional information on locomotive exhaust emission standards is available electronically from the EPA Internet server at: http://www.epa.gov/oms/locomotv.htm or contact the locomotive certification contact at: U.S. Environmental Protection Agency Office of Mobile Sources (6403J) 401 M Street SW Washington, DC 20460

17 U.S. Environmental Protection Agency, 2002, U.S. Environmental Protection Agency, About EPA, Regions, http://www.epa.gov/epahome/locate2.htm.

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11.3 Environmental Regulations of Canada

Canadian requirements for environmental assessments were established in 1973 at the cabinet level as the Environmental Assessment and Review Process. The Federal Environmental Assessment and Review Office oversees the environmental assessment system. An

independent panel appointed by the Minister of the Environment conducts the review, and the public has access to all panel information. In addition to the federal environmental assessment process, each province has its own program, usually mandated with legislation. Under the Canadian Environmental Assessment Act, federal departments and agencies must undertake an environmental assessment before:18

• They carry out a project; • Provide financial assistance to enable a project to be carried out;

18 Canadian Environmental Assessment Agency, 2001, Environmental Assessments, http://www.ceaa.gc.ca/0009/index e.htm.

(Taken from the EPA website: http://www.epa.gov/epahome/locate2.htm)

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• Sell, lease or otherwise transfer control or administration of land to enable a project to be undertaken; or

• Issue an authorization to enable a project to go forward. Depending on the nature of the project and the significance of possible environmental effects, the type of assessment required will vary. Most projects are assessed relatively quickly under what is known as a �screening� type assessment. Larger projects, that have potential for greater environmental impacts, may require a �comprehensive study.� If environmental effects of a project are uncertain or potentially significant, or if public concern warrants, a review by an independent Environmental Assessment (EA) �review panel� or �mediator� may be required. Important Canadian Federal Statutes on environmental protection include the following:

• Canadian Environmental Protection Act • Canadian Environmental Assessment Act • Fisheries Act • Species at Risk Act • Navigable Waters Protection Act • Migratory Birds Convention Act • Federal Policy on Wetlands Conservation

There are also other Federal legislations that require environmental impact assessments for sensitive projects under certain conditions:

• Canadian Transportation Act • Transportation of Dangerous Goods Act • Canada Wildlife Act • Canada National Parks Act • Indian Act • International River Improvement Act • National Fire Code

Provincially regulated railways, such as most short lines, adhere to different provincial legislations. Certain undertakings by federally regulated railways may also be subject to provincial and municipal laws. For more information go to:

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http://www.ceaa.gc.ca/0009/index_e.htm or call or write: The Canadian Environmental Assessment Agency Communications Service 200 Sacre�-Coeur Boulevard Hull, Quebec K1A 0H3 Telephone: 819-997-2891 Fax: 819-953-2891 E-mail: [email protected]

11.3.1 Canadian Wetlands Environmental Assessment Guidelines Wetland protection is a shared responsibility between the federal, provincial and territorial governments. As required in the CEAA, an environmental assessment must address impacts in an integrated manner. In the case of an environmental assessment involving wetlands, the links between the wetland functions, their derived values, and the components of the ecosystem must be considered holistically. Mitigation is required for all impacts. You must be able to demonstrate that the hierarchical sequence of mitigation alternatives has been followed (avoidance, minimization and as a last resort, compensation).

When preparing an Environmental Assessment for projects affecting wetlands, include the following information:

1) Context: The environmental assessment should be conducted in an ecosystem context. Wetland functions and important ecosystem components must be determined at the outset.

2) Specific information: The information required to conduct an environmental assessment for wetlands will depend, in part, on the scale of the proposed project or activity and on the projected degree of impact. The regional environmental assessment practitioner of the Environmental Conservation Service of Environment Canada can provide guidance on how to obtain the specific information and how to carry out the environmental assessment. The following information is generally required for a proposed project:

a. A complete project description including engineering details.

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b. Geographic boundaries of the environmental effects of the proposed project.

c. A description of potentially affected wetlands and impact area.

d. Maps or GIS systems that locate the impact areas.

e. Specific wetland functions must be addressed, which includes the following:

i. Hydrological.

ii. Biological.

iii. Habitat.

iv. Ecological.

v. Social/cultural/commercial.

vi. Aesthetic/recreational.

vii. Education and public awareness.

viii. General

3. Wetlands in managed forests: Additional information is required when a wetland is located in a managed forest.

The Environmental Conservation Branch enforces the following regulations:

• Federal Wetlands Policy • Canada Wildlife Act • Migratory Birds Convention Act • Game Export Act • Wild Animal and Plant Protection and Regulation of International and

Interprovincial Trade Act • International Rivers Improvement Act • Canada Water Act

For more information contact: Environmental Conservation Service of Environment Canada Or Canadian Wildlife Service Environment Canada Ottawa, Ontario K1A 0H3 Telephone: 819-997-1095 Fax: 819-997-2756

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E-mail: [email protected] For more information go to: http://www.cws-scf.ec.gc/publications/eval/wetl/intro_e.cfm

11.3.2 Endangered Species In Canada, provinces and territories have worked independently of and in cooperation with the federal government to protect and recover endangered species. All jurisdictions provide varying levels of protection to species at risk through bits and pieces of wildlife legislation. Currently four of Canada�s provinces (Manitoba, Ontario, Quebec and New Brunswick) have endangered species laws in place. Newfoundland, Saskatchewan, Nova Scotia and the Northwest Territories are currently developing legislation. For further information contact: Endangered Species Conservation Canadian Wildlife Service Environment Canada Telephone: 819-953-4389

11.3.3 Hazardous Waste

The Government of Canada regulates international movements of hazardous wastes, while the provincial and territorial governments control generators, waste management facilities and transportation within their jurisdictions. Canada already has strict regulations on the trans-boundary movement and transportation of hazardous wastes under the Canadian Environmental Protection Act. The provinces and territories also have regulations that set out requirements for the operation of waste management facilities.19 For more information on the Export and Import of Hazardous Wastes Regulations, contact: Hazardous Waste Division Office of Waste Management

19 Government of Canada, 2001, Hazardous Waste Management in Canada, http://www.ec.gc.ca/Press/2001/010803 b e.htm.

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Environment Canada 12th Floor, 351 St. Joseph Blvd. Ottawa, Ontario K1A 0H3 Telephone: 819-997-3377 Fax: 819-953-0508 Alberta Division Environment Canada Twin Atria #2, Room 200 4999-98 Avenue Edmonton, Alberta T6B 2X3 Telephone: 780-951-8888 Fax: 780-495-2615 Saskatchewan Division Environment Canada Room 300, Park Plaza 2365 Albert Street Regina, Saskatchewan S4P 4K1 Telephone: 306-780-6464 Fax: 306-780-6466 Manitoba Division Environment Canada 5th Floor Federal Building 269 Main Street Winnipeg, Manitoba R3C 1B2 Telephone: 204-983-4818 Fax: 204-983-0960

11.3.4 Air Quality A negotiated memorandum of agreement between Transport Canada and the Railway Association of Canada has been developed to set air quality standards. Canadian air quality regulations are very similar to those of the United States. For example, any visible dust (from a construction project) or emissions (from locomotives) is regulated. Note: Air quality standards may differ between provinces, so check your local regulations.

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For more information visit the web at: http://www.ec.ca/air/introduction_e.cfm

11.4 Environmental Regulations of Mexico

The development of legislation, scientific resources, and community interest in environmental assessments in Latin America has come from external aid organizations, including the United Nations Environment Programme and the Pan-American Health Organization, which have

sponsored development projects.

11.4.1 Regulations The political constitution of the United Mexican States mandates preservation and restoration of the environment through a General Law of Ecological Equilibrium and Environmental Protection. The General Law of Mexico implements these constitutional provisions and is composed of six titles:

• Title one: The first title regulates the distribution of authority among federal, state and local governments. It defines the authority of the federal agency charged with the overall jurisdiction, which is currently the Secretariat of Social Development � SEDESOL.

• Title two: The second title regulates protected natural areas.

• Title three:

The third title regulates rational use of natural elements, including water and aquatic ecosystems, land use and land resources.

• Title four:

The fourth title regulates environmental protection as it pertains to seven general categories including air, water, soil, hazardous residues, and the various government bodies authorized to enact norms and regulations. The first category concerns air pollution and its control, and classifies emission sources as either static or dynamic. The

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jurisdiction over these issues is delegated to state and local governments. The second category pertains to the prevention and control of water pollution with special emphasis on aquatic ecosystems. The third category pertains to the prevention and control of soil contamination and addresses solid and non-hazardous waste from industrial and urban sources. It also mandates fertilizers and toxic chemicals. The fourth category pertains to hazardous waste, the method of identifying hazardous waste, and proposed programs to reduce hazardous waste risks.

• Title five:

The fifth title provides for public participation in the formulation of environmental policy.

• Title six:

The sixth title establishes measures for control and safety and corresponding sanctions for violations. This title also regulates inspections, monitoring procedures, administrative sanctions and administrative appeal procedures, as well as federal environmental crimes and penalties. A whistle-blowing provision is included in this title, which enables any person, who believes that a party is contaminating the environment, may submit a claim to the Attorney General�s Office for the Protection of the Environment. The Attorney General�s Office will investigate the claim and determine whether the accused party is in fact contaminating the environment. If it is determined that the party is contaminating the environment, the Attorney General�s Office imposes corresponding sanctions and requires clean up of the contamination.

The regulations to the General Law establish Environmental Impact Statement requirements that must be fulfilled according to Articles 28 and 29 of the Environmental Protection Law for the grant of authorization for projects subject to approval. The goal of these regulations is to provide the Mexican government with the authority to maintain control over private and public construction projects prior to their commencement and to maintain control over any activities that have a potential adverse impact on the environment. Before an enterprise may begin its operations, it must submit notice of its proposed operations to the environmental authority (SEDESOL). Other regulations govern air pollution control, define the scope of federal jurisdiction, and govern corresponding air pollution issues. These specific provisions of the regulations include reporting requirements, as well as requirements to obtain an operational license, which involves establishing an emissions inventory.

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Additionally, there exists a regulation for the prevention and control of water pollution. The Mexican government recently adopted the National Water Law. Its purpose is to regulate federal waters, whether flowing or stationary, above ground or subterranean, as well as to govern water rights issues.

11.4.2 Mexico Regulation for Hazardous Waste The regulation for hazardous waste governs the environmental protection from hazardous waste. This regulation requires facilities that generate hazardous waste to register with SEDESOL and to describe the type of waste that will be generated. The regulation addresses the transportation, storage, collection and disposal of hazardous waste.

11.4.3 Ecological Technical Standards

SEDESOL (Secretariat of Social Development) is responsible for environmental enforcement. There are rules adopted by SEDESOL, which establish the specifications, conditions, procedures and parameters that must be observed by the industry when conducting activities that may be harmful to the environment. These standards establish maximum permissible limits for air emissions from specific industrial processes and minimum standards for building a controlled waste confinement facility.20

11.5 Wetland Case Study A railway company wants to construct a maintenance building in the United States on recently acquired land. The building will be constructed off the existing main track, along a proposed siding. The railway�s environmental consultant inspects the acquired land for possible wetland areas.

20 Burguete-Stanek, L., 1994, Regulations to Protect the Environment in Mexico, The United States � Mexico Law Journal, http://www.natlaw.com/pubs/usmxlaw/usmjnm18.htm.

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Drawing made courtesy of Bollinger, Lach & Associates, Inc.

The railway provides the environmentalist with preliminary engineering and site plans, which illustrate the boundaries of the project. The environmental scientist conducts a site visit and discovers two wetland areas are located within the limits of the proposed activity. He flags the wetland boundaries and recommends they be surveyed. After the survey is complete, the environmentalist reviews the survey to confirm wetland boundaries. A wetland delineation report is completed and submitted to the railway�s engineer. The wetland delineation report includes a narrative of what was found on-site and their jurisdictional statuses. It also includes maps (National Wetland Inventory, Soils, Hydrologic Atlas and Topographical Map), on-site photos, an aerial photo illustrating wetland limits and Routine Wetland Determination Data Forms (using the 1987 COE Wetlands Delineation Manual). Construction can start in areas outside wetland limits; however, a permit is required for wetland fills (for portions where the siding and maintenance building are located in jurisdictional wetland areas).

Next, a jurisdictional determination letter is sent to the United States Army Corps of Engineers (USACE). In the letter, the environmentalist states that wetland #1 is non-jurisdictional because it is not hydrologically linked by overland flow to a navigable waterway. However, wetland #2 is jurisdictional because it is linked by overland flow to a navigable waterway (the River). The USACE responds by sending a letter to the environmentalist and the railway company, stating a USACE permit is not required for activities associated with wetland #1. However, the railway company will need a permit for activities associated with wetland #2.

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To partially fill wetland #2, for the construction of the maintenance building and the siding track, this project will require nationwide permits No. 14 (for linear transportation projects) and No. 39 (for residential, commercial and institutional developments).

The environmentalist will submit all documents required for a USACE permit. He asks the railway for the following items (which will be included in the permit submittal):

a. Letter of authorization. (On the railway letterhead with one sentence in the letter stating �The environmentalist is authorized to act as an agent for the railway in regards to wetland permitting�)

b. Surveyed wetland boundaries overlaid on the site plan. c. List of surrounding property owners.

After the environmentalist receives the above information from the engineer, he prepares and submits the following to the USACE (and other local, state (including the DNR) and federal appropriate agencies):

1) Cover letter stating intent. 2) Letter of Authorization. 3) Joint Permit Application. 4) Wetland delineation report (this includes supporting exhibits such as maps,

photos, USACE forms). 5) Surveyed wetland boundaries overlaid on site plan. 6) Proof of consultation with the United States Fish and Wildlife Service

regarding potential endangered and threatened species. 7) List of surrounding property owners.

The first response to come back is a letter from the Department of Natural Resources (DNR) on Endangered and Threatened species. The DNR�s records indicate that there is a threatened plant species located in an upland area where the new siding track is proposed to be constructed. The environmentalist did not see the plant species at the time of his initial site visit because the plant was not in bloom and is otherwise unidentifiable. The environmentalist proposes to meet the DNR on-site when the plant is in bloom, and they will flag individual plants. While on-site, the two parties flag the species with small pin flags. While on-site, they also discuss remedial action. The environmentalist proposes to transplant the species to a preserve, willing to take them, so they will not be impacted by the development. After the site visit, the environmentalist writes a letter to the DNR, discussing the transplanting idea. In the letter, the environmentalist recommends digging up individual plants and replanting them at a local forest preserve with the help of volunteers. The idea is approved by the DNR and the transplanting takes place. The DNR writes a letter stating the railway company is in compliance and consultation is terminated.

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The USACE responds to the submittal stating that since the development will impact 0.25 acre of wetland, mitigation will be required at a 1.5:1 ratio. Mitigation on-site will also require a 5-year maintenance and monitoring program or the railway company can purchase credits in a wetland mitigation bank. Paying into a bank is a cleaner and quicker process, because once payment is made, the obligation is done. In this case, wetland credits (within the same watershed) are selling for $125,000 per acre. Since the company is impacting 0.25 acres, they must mitigate at a 1.5:1 ratio, therefore 0.375 acre of wetland credit must be purchased, multiplied by $125,000, which is $46,875. This is summarized below: 0.25 (wetland impact acreage) x 1.5 (mitigation ratio) = 0.375 (mitigation acreage required) 0.375 x $125,000 (cost per acre in mitigation bank) = $46,875 (cost to purchase wetland credits to comply with permit) After the payment is made to the proper agency, the company receives its permit and construction can begin within the wetland area, according to the guidelines specified in the permit. Please note, this sample only covers wetland issues, any state or local permits must be addressed as well.

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Chapter11 - Enviromental Regulations and Permitting

Documents

Transcript of Chapter11 - Enviromental Regulations and Permitting