Michael HelbingStaff Attorney

Citizens for Pennsylvania’s Future

Discussion Overview Meaning of Cumulative Impacts and Development

under Federal Law

Cumulative Impacts Analyses in Pennsylvania Law Water Obstruction and Encroachment Permits–

PADEP Ch. 105 Regulations Determination of Impact under 25 Pa. Code §§ 105.14, 105.18a

Cumulative impacts analysis for exceptional value wetlands

TMDL Process

Other Areas Water – NPDES General permits, Erosion and Sedimentation,

EV waters

Mining – Cumulative impacts on area hydrology

Air Pollution Permits – PSD and NSR

PA Environmental Rights Amendment

The Big Picture “Evidence is increasing that the most devastating

environmental effects may result not from the direct effects of a particular action, but from the combination of individually minor effects of multiple actions over time.”

-Council on Environmental Quality, Considering Cumulative Effects under the National Environmental Policy Act (January 1997), p. 1.

National Environmental Policy Act

Requires federal agencies to prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA) to comprehensively identify and analyze any environmental effects of proposed major actions requiring a federal permit.

Under Council for Environmental Quality regulations, those documents must include an analysis of cumulative impacts. 40 C.F.R. §§ 1508.9, 1508.25.

42 U.S.C. §§ 4321-4370h

“Cumulative Impacts” under NEPA

“The impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”

“Can result from individually minor but collectively significant actions taking place over a period of time.”

40 C.F.R. § 1508.7

Components of a Meaningful Cumulative Impacts Analysis Geographic area in which the effects of the project will

be felt

Impacts that are expected in the area from the project

Other past, present, and reasonably foreseeable future actions that affect the same area

Impacts from other actions in the area

Overall impact that can be expected if the individual impacts are allowed to accumulate

Delaware Riverkeeper Network v. Fed. Energy Regulatory Comm’n, 753 F.3d 1304, 1319 (D.C. Cir. 2014).

General Permits under Clean Water Act, Section 404 To issue a general permit for the discharge of dredge or fill

material, the permitting authority must determine that the permitted activities “ will have only minimal cumulative adverse effect” on water quality and the aquatic environment. 33 U.S.C. § 1344(e)(1); 40 C.F.R. § 230.7 (a)(3).

Regulations require the permitting authority to set forth in writing its evaluation of cumulative impacts and include documented information supporting its finding of minimal cumulative adverse effect. 40 C.F.R. §230.7(b); Kentucky Riverkeeper v. Rowlette, 714 F.3d 402, 412 (6th Cir. 2013).

Chapter 105- Water Obstruction and Encroachment Permits

Required “for any structure or activity which changes, expands or diminishes the course, current or cross section of a watercourse, floodway or body of water” (including wetlands).

105.14 Review of Applications “In reviewing a permit application under this chapter,

the Department will use the following factors to make a determination of impact: (14) The cumulative impact of this project and other

potential or existing projects. In evaluating the cumulative impact, the Department will

consider whether numerous piecemeal changes may result in a major impairment of the wetland resources.

The Department will evaluate a particular wetland site for which an application is made with the recognition that it is part of a complete and interrelated wetland area.”

25 Pa. Code §105.14(b)(14)

105.18a Wetlands To approve a permit, the Department must enter

written finding that:

EV Wetlands: “The cumulative effect of this project and other projects will not result in the impairment of the Commonwealth’s exceptional value wetland resources.” 25 Pa. Code § 105.18a(a)(6).

Non-EV Wetlands: “The cumulative effect of this project and other projects will not result in a major impairment of this Commonwealth’s wetland resources.” 25 Pa. Code § 105.18a(b)(6).

Chapter 105 Permits: What We’ve Seen Very minimal cumulative impacts analysis in approved

and submitted permit applications that we’ve reviewed.

Possible confusion between overall cumulative impacts and cumulative impacts within different segments of a given project?

TMDLs: Another Accounting of Cumulative Impacts? Under the Clean Water Act, states are required to develop

lists of impaired waters that don’t meet water quality standards. 33 U.S.C. § 1313(d).

For each impaired water, a state must develop a total maximum daily load (TMDL) for each impairing pollutant. 33 U.S.C. § 1313(d)(1)(C).

The total load is allocated among point sources (wasteloadallocation) and non-point sources (load allocation).

All NPDES permits must be consistent with any applicable wasteload allocations in a TMDL. See 40 C.F.R. §122.44(d)(1)(vii)(B).

TMDLs: Another Accounting of Cumulative Impacts? Essentially, the state determines in advance the

aggregate amount of permissible pollution impact on a water body.

This may be considered an alternative means of addressing adverse cumulative impacts.

Other Pennsylvania Permits Water

NPDES General Permits- Notice of intent for coverage under a general permit must “demonstrate that the discharge from the point sources, individually or cumulatively, will not cause or contribute to a violation of an applicable water quality standard established under Chapter 93.” 25 Pa. Code § 92a.23(a) (emphasis added); see also 25 Pa. Code § 92a.54.

In Exceptional Value Waters- DEP must consider the cumulative effects of a series of similar permits in the same watershed. Valley Creek Coalition v. Commonwealth of Pennsylvania, 1999 E.H.B. 935 (EHB Docket No. 98-228-MG).

Erosion and Sedimentation Control General Permits- To issue a general permit for erosion and sedimentation activities that are not subject to NPDES requirements DEP must determine that the projects “individually and cumulatively do not have the potential to cause significant adverse environmental impact.” 25 Pa. Code § 102.5(m).

Other Pennsylvania Permits (cont.) Mining

35 Pa. Stat. Ann. § 691.315 (Operation of mines) requires mining applicants to include sufficient information in applications for the Department to make an assessment "of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability.“ See also 25 Pa. Code § 86.37(a)(4).

Air Pollution EPA sets National Ambient Air Quality Standards (NAAQS), which

are air pollution concentration-based goals, for “criteria” pollutants. In permitting process for major new sources of air pollution, applicant must model existing air quality and perform modeling to demonstrate that its emissions will not cause or contribute to air pollution that would violate NAAQS or PSD increments.

Pennsylvania Environmental Rights Amendment (ERA)

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Pa. Const. art. I, § 27.

ERA discussed in Robinson Twp. The “cross-generational dimension of section 27”:

recognizes that “environmental changes, whether positive or negative, have the potential to be incremental, have compounding effect, and develop over generations”

“offers protection equally against actions with immediate severe impact on public natural resources and against actions with minimal or insignificant present consequences that are actually or likely to have significant or irreversible effects in the short or long term.”

Robinson Twp. v. Commonwealth of Pennsylvania, 83 A.3d 901, 959, citing 1970 Pa. Legislative Journal-House at 2273.

Discussion Items What cumulative impacts analyses are required under

other states’ laws? Am I missing any in Pennsylvania?

Which environmental stressors/ resources are the best candidates for cumulative impacts analyses?

Especially considering the lack of resources that government agencies at all levels are suffering from, what is the best approach for ensuring that cumulative impacts are adequately accounted for in routine local, state, and federal actions, including permitting decisions?

In Pennsylvania, what promise does the Robinson Twp. case hold for ensuring more awareness of cumulative impacts concerns?