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(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
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• 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
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http://www.cicacenter.org/index.cfm
Source for basic information
SAN RAFAEL • SAN DIEGO • DENVER • FORT BRAGG • EMERYVILLE www.wra-ca.com (415) 454-8868 4
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
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Section 404 Jurisdiction
To many people, wetland determinations under CWA are a mystery
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Section 10 and 404 boundaries
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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
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Typical Delineation Map
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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
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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
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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
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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
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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
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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
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Issues affecting construction industry
• 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
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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
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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.
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Issues affecting construction industry
• 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
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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
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Michael Josselyn, [email protected]
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