Archive for the ‘Army Corps of Engineers’ Category

EPA and Army Corps of Engineers Issue Draft Guidance on Identifying Waters Protected by the Clean Water Act

Photo by Marc Veraart. Some rights reserved.

On May 2, 2011, the EPA and the U.S. Army Corps of Engineers jointly issued a request for comments in the Federal Register on draft guidance that is intended to clarify how the two agencies will make determinations about whether waters are protected by the Clean Water Act (33 USC §1251 et seq.).

The proposed guidance, which also implements two relevant Supreme Court decisions that concern the extent of waters covered by the Clean Water Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States), once finalized, will supersede a 2003 ‘‘Joint Memorandum’’ on the topic and existing 2008 guidance entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States.

The agencies believe that “under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice and this improvement will aid in protecting the Nation’s public health and aquatic resources.”

Law firm Fulbright & Jaworski published a Briefing late last week that highlights some of the expected changes resulting from the adoption of this proposed guidance, focusing on the agencies’ increased jurisdictional reach – a change that, according to Fulbright & Jaworski, “legal challenges are guaranteed to follow.”

You can read more about the guidance – including an analysis of potential economic benefits and impacts associated with the guidance – on the EPA’s Clean Water Act Definition of “Waters of the United States” webpage. Comments will be accepted on the proposal through July 1, 2011.

Leaked Corps Notice Favors Renewable Energy Over Wetlands

Will the Army Corps of Engineers move forward with a plan to permit construction of renewable energy facilities on wetlands and streams?

Original photos by TANAKA Juuyoh and Nigel Cox. Some rights reserved.

A draft proposal leaked earlier last week reveals that the Corps is contemplating creating three new nationwide permits (NWPs) that would allow for the discharge of dredged or fill material into non-tidal waters of the United States for the construction, expansion, modification, or improvement of renewable energy productive facilities.

The proposed permits cover “land-based” solar, wind, or geothermal projects, “hydrokinetic” (wave, tidal, current) projects, and wind or geothermal projects sited in navigable waters. All the permits propose a one-acre limit on project sites, with the loss of no more than 300 linear feet of stream bed. The permits make unfortunate allowances for attendant features such as roads, parking lots, and utility lines.

According to a recent Chapman and Cutler Update (see the third story down), the permit requirements for these renewable energy projects would be more relaxed than those of their traditional counterparts. Nonprofit Public Employees for Environmental Responsibility (PEER), who published the leaked proposal, points out that “in most areas of the country, Nationwide Permits limit or eliminate review by the Environmental Protection Agency (EPA), Fish and Wildlife Service, and National Marine Fisheries Service.”

It is difficult to say whether the Corps sees the trade off of wetlands for renewable energy facilities a net gain for the environment, or whether they are yet another government agency feeling compelled to usher “green” projects to the front of the line (see: USPTO’s Green Technology Pilot Program). Care to tell them your opinion? Though it is unclear when the proposal will be published in the federal register, once it is, you will have 60 days to submit comments.

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You can review current Nationwide Permits Information here.

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