Wetland Wednesday
December 2, 2020
There is an ancient Chinese curse that seems most appropriate for 2020. “May you live in interesting times.” There is some debate as to whether this curse is attributable to the Chinese, but the meaning rings true.
I think it is safe to say that this year has been an interesting time. The list of interesting topics is long and incudes a pandemic, a contested Presidential election, national protests, and mask mandates to name a few.
The topic of wetlands regulation has also fallen to this curse. We now have a new Waters of the US (WOTUS) definition, a new wetland plant list, new state wetland programs, and a new wetland permitting program. The last of these I would like to focus on.
A couple of weeks ago the public comment period for the USACOE Nationwide Permitting program had ended. It had a whopping 534 public comments. This is a far cry from the 1.6 million comments the Obama Administration had for its Clean Water Rule. Ironically, the changes to these permits are as significant to the development industry as the WOTUS definitions updates where. What is even more important about this general lack of interest in permits is that this low comment number expedites the final issuance of the new permits.
Looking into my muddy crystal ball I would expect to see these permits issued in final form before Inauguration Day in January. The public comment period ended on November 16, 2020. With only 534 comments to manage. I would expect that the Corps has already finished its review of the comments and is in the process of formulating its response. It would be reasonable to expect a pre-publication announcement within a week or two and final publication in the Federal Register on Christmas Eve. December 24 has been a popular day to publish new wetland rules in the past. The effective date of the new rules would probably be 30 days from publication with an outside chance that it might extend to 60 days. Even if there is a new President seated there is nothing to stop this process once it has been published.
The comments themselves are fairly substantive. I have reviewed many of them based upon who the commentor was. From this I can briefly summarize the comments on a more wholesale basis.
To start there were very few seminar comments. These are comments that are basically, “I like/dislike this new rules.” Insert name here. Most of the comments from individuals were genuine people with a specific concern.
The government agency comments can be lumped into one general category. They do not like to mess with the status quo. At issue is the elimination of the 300-foot stream impact limit. This has been replaced with a 0.5-acre threshold limit. Their main concern relates to how to translate this into the various state permitting and mitigation rules. One concern brought up by the NC Department of Mitigation Management poses an interesting dilemma. They have over $400 million dollars’ worth of unencumbered stream restoration credits that are based upon a linear footage program. The change to acreage creates significant bookkeeping problems. It will be interesting to see how the Corps responds to that one.
There is also an issue with Statewide Programmatic Permits. Well, there is no longer an issue with these permits as they would no longer exist. Several state agencies had queried on this topic.
The private sector development groups have concerns about increasing the permit threshold limits. Groups like the National Homebuilders would like to see these thresholds increase.
The environmental groups are generally opposed to these permits. This stems largely from the National Environmental Policy Act (NEPA) issues that caused some of the 2017 permits to be rescinded. It is not entirely clear how the Corps satisfied its NEPA compliance in the permit regulations. However, I expect we will see more data show up in the regulation docket as time goes on. The biggest issue identified relates to endangered and threatened (E&T) species impacts associated with these permits. The E&T species impacts associated with the issuance of these permits is not well documented either way. One would assume that any impact to a wetland would negatively impact E&T species if present.
All of the wetland programs that have been modified under the Trump Administration have been done through the issuance of regulations as opposed to executive orders. Even the National Wetland Plant list was published in the Federal Register as a regulation. Consequently, it would be very difficult for a new Administration to delete these new permit rules. It took three years for the Clean Water Rule to be replaced and that was largely because it had not yet been nationally implemented due to numerous court challenges.
So, in summary, get ready for a whole new set of Nationwide Wetland Permits coming your way this spring.
The good news is 2021 on the Chinese calendar is the year of the Ox. It should come as no surprise that 2020 was the year of the Rat. The Ox should have come in first in the Great Race, but the Rat cheated. Read into that what you will. The Ox is also associated with Yang so good times are coming!
Merry Christmas, Happy Holidays and best wishes for a prosperous and productive New Year!
– Marc