PODCAST: What’s with WOTUS? Redefining the Waters of the United States and Understanding Recent Changes to Federal Permitting Regulations

This podcast was transcribed by https://otter.ai using AI technology and may contain grammatical or spelling errors.

Stacy Lake Hi, everyone. Thank you for joining us for another episode of Insights by Bergmann, a podcast that provides timely commentary from subject matter experts on topics and trends related to our built environment. I'm Stacy Lake and today we are delving into the world of WOTUS - the Waters of the United States and recent changes to wetland and waterway regulations that are causing some upheaval and some back and forth for businesses and developers across the country.

Today we are joined by Dave Plante, our Energy + Environment Practice Leader and Rita Kozak, our Ecological Project Manager, both of whom bring years of experience in environmental permitting, and have been working directly with clients and projects that are being impacted by this latest news. Welcome, Dave and Rita. It's great to have you both here.

Rita Kozak Thanks, Stacy. Appreciate it.

Stacy Lake So we know wetlands are a hot topic. They are critical biological ecosystems, and they support extensive agricultural, recreational commercial industries. So they're really important. And they're traditionally regulated by the government, which is where you and your team come in. Can you give us some context around the work that the two of you do and what your larger team does for our clients? I know that your work touches a lot of different markets and areas that we work in at Bergmann.

Dave Plante Yeah, sure, so I can get started. Thanks, Stacy. So Dave Plante, I lead the Energy + Environment practice at Bergmann. I am a certified environmental planner. So I have about 16 years of experience, 10 of which are here at Bergmann mostly all in wetland, stream, river, permitting, environmental impact assessment here in New York under SEQR, the State Environmental Quality Review Act. And you know, starting way back in the day, delineating wetlands and streams for projects all over New York, you know, and we've kind of expanded, you know, we really Bergmann 10 years ago didn't have an environmental practice. So we really started it now have grown to over 25 people in five or six different offices in the Northeast and Midwest. And our work has gone from just here in New York doing permitting wetland delineations, threatened and endangered species habitat assessments, Shippo consultations, you name it anything ecological and environmental in New York to 23 different states and 20 other US Army Corps of Engineer regulatory districts.

Rita Kozak I'm Rita Kozak and as you mentioned, an ecological project manager in the Energy and Environment group. I've been with Bergmann for five years now and have a total of about seven years experience in the field. When I started, I was mostly focused on fieldwork doing wetland delineations functional assessments, preliminary habitat assessments for threatened and endangered species. And then all the reporting that comes with that after the fact. And then I also have had a heavy hand in permitting for a lot of our projects for section four, a four section 401. We've done section 408 permitting, with core civil work and PDES permits, Tini and endangered species take permits. And in various state regulation, environmental permits, as well. Pennsylvania has state specific, New York state specific, Ohio, all the states that we work in are a little bit unique. And so we are focused on those state specific permits as well. As they mentioned, our ecological discipline within the environmental group is about seven people. And we have people that do field work, permitting, and all the stuff that I just mentioned.

Dave Plante And we're doing, as Rita mentioned, work from Maine to Texas, out to California right now for our various solar pipeline and other clients in other practices here at Bergmann.

Stacy Lake Great. So you guys and the larger team, you clearly have your hands directly in what we're talking about today. You know, there's been a variety of changes to the wetland regulations and permitting and this is a big deal because whenever wetlands are involved in any type of project, they require those national permits. And it sounds like there are even changes happening at the federal level around wetland delineation, how wetlands are defined. Can you tell us a bit more about this?

Rita Kozak Yeah, sure. So wetlands are regulated under mostly section 404 of the Clean Water Act. And in order to determine what is the wetland, the Army Corps of Engineers and the EPA has the Waters of the United States definition. Anything that's classified as waters of the United States is regulated under this Clean Water Act. So going back to pre 2015, the clean or the Waters of the US rule was dictated by this court case called the Rapanos case is what it's commonly referred to. And it basically sets forward the definition of the Waters of the United States is traditionally navigable waterways and then other types of waters, wetland streams, mud flats, sand flats, prairie potholes, all these other types of aquatic features that are also regulated at waters of the United States. So then in 2015, they came out with the Clean Water rule, which was, it extended the reach of what they consider Waters of the US, there was a lot more features that weren't previously regulated that were now going to be regulated. And of course, that got tied up in all kinds of litigation. So then in 2020, they got rid of the 2015 Clean Water rule. And they implemented the 2020 navigable water protection rule, which it went the opposite direction, it decreased the amount of features that were regulated, you had to have a direct connection to traditionally navigable waterways, in order to be in waters the US. And since this rule has been in place, and with the new presidential administration, this rule has been repealed. And we were kind of floundering about where the Waters of the US was going to go once they repeal this, and the EPA and the corps have issued guidance that we are now back to the pre 2015 re Panos rule. So it's come full circle right now, in order to be jurisdictional water under the repono US rule, you have to prove a significant nexus to the traditionally navigable waterway. That's the main takeaway of the Ricardos rule, let's say, to determine what those waters of the US are.

Stacy Lake So a bit of whiplash happening. Sure, every time there's an administration change, or some type of new regulation coming down the pipeline, you guys are eagerly anticipating what's going to happen there. It's really interesting how all this comes about. So that's how they're defined, which clearly is a starting point for a lot of the projects that we work on with our clients. And then you layer on top of that, the regulatory changes when it relates to certification and permitting. And over the last few months, there's been a lot of legal movement, again, a little bit more of this whiplash going back and forth with the permitting and how that would impact our clients projects. Can you give us a summary of what's happening with the National permitting and the Water Quality Certification law?

Dave Plante So I can touch on that. So yeah, a lot has really changed this fall. And a lot of the rule, the in laws that were pushed through during the previous administration have, you know, kind of been halted or vacated in federal court. So the the navigable waterways protection? Well, the reader already mentioned is one of those. The other one is you kind of alluded to is the the Water Quality Certification law. So there's various laws under Section 401 of the Clean Water Act, that, you know, the EPA and the state agencies that implement those laws are required to adhere to, as far as you know, what impacts a project is allowed to have streams, wetlands, rivers, you know, to protect the water quality of our of our nation's waterways, which is really important. So, you know, when this this court case, Northern California Federal Court vacated the, the 2020, or the the water quality law 2020, it really threw things into confusion, as far as you know, what is the process, both on a federal and state level? And, you know, how can the US Army Corps of Engineers and the state agencies that implement the water quality law, how can they process permit so for a while, in October, the Corps of Engineers had halted all reviews of their nationwide permits, you know, the very typical simple, you know, low impact threshold permits that many, many projects, you know, not just energy projects, like Rita and I work on a lot, but residential projects, commercial projects, dam safety projects, you name it, a number of them have been affected. And, you know, we'll get into that a little bit later, as far as, you know, the types of projects but so, our clients were calling us and asking us, you know, is this true? You know, are we are all of our applications that are in with the Corps of Engineers and the Dec and other state agencies, you know, we have no timetable now for when they're going to be issued, that's going to impact our construction schedule, it's going to impact costs, you know, lease agreements for, you know, some of our solar clients that, you know, go month to month, and a lot of wide ranging effects that these changes had on our projects. And, you know, only a couple of the nationwide permits, were affected by this change, anything that relied on basically the 2020 Water Quality Certification law. So in 2021, the Court issued some new nationwide permits for various types of projects, solar being one of them, commercial projects, residential projects, they relied on that new law. So those are the ones that the court basically said we're not going to review right now until we have more guidance from the Environmental Protection Agency. And that is 90% of the work. You know, the permitting work that Rita and I do are for those types of projects, energy pipelines, solar, you know, residential commercial, so You know, it's funny you and I, Stacey were just talking and Rita about, we were going to record this a couple of weeks ago. And we're lucky we didn't because the guidance has changed again. As far as you know, the Corps is now back on, you know, reviewing these applications, issuing nationwide permit authorizations. And the state agencies, like the New York State DC are back to, you know, issuing individual water quality certifications, allowing for the blanket water quality certifications, which you know, if you're under certain impact thresholds for the nationwide permit program, you don't have to go to the DC you can be covered under a blanket water quality certification, and those are being allowed to be used again, and it's leading into now, as the nationwide permits are going to be renewed in 2022, the Water Quality Certification law is going to be changed as well. They're going through rulemaking to make a final Water Quality Certification law. So there's going to be some more changes coming. And you know, it's our job on Rita's plate in my plate to inform our clients of these important changes. Because, you know, as rulemaking goes through, they could have big impacts on the way our clients are planning their projects.

Stacy Lake Right. I was just gonna say it sounds like it's the next is for ripple effect. Right, in terms of timing and next steps. I mean, did you have you experienced or have our clients experienced a backlog in terms of them turning around these permits? Now, since we took that, what month long pause before they they went back?

Rita Kozak Yes, we, we've kind of seen a slowdown in the Corps responsiveness to our applications. I think a lot of it is because they are trying to keep their heads around all these rule changes. Because if you think about the staff of the Corps, and the DC and all the other agencies, they're trying to learn this at the same time that we and our clients are, in real time as these changes are happening. So um, there was a brief period there, where when they paused, they vacated the Clean Water Act Section 401 certification rule. But now that that has kind of been resolved itself, it seems that the agencies are picking back up with the reviews that were kind of pause there for a while.

Stacy Lake That's good news.

Dave Plante Yeah, and even before this change, you know, the Corps and the DC and other state agencies have had a bit of a backlog, you know, we are obviously still in the midst of a pandemic, and there is a, you know, not only supply chain issues, but also labor issues, as far as having enough people to review applications and process permit applications, in accordance with the timeframes that state and federal law require. So many times we are over those timeframes. And so we have to reach out to various agencies, you know, politely say, you know, hey, the timeframes for review are over can we can proceed with our project, we realize you're really backed up. And, you know, we want to make sure that, you know, we're being responsive to our clients and keeping their schedule at the forefront of our mind.

Stacy Lake Sure, sure. And you alluded Dave, to a couple of examples of the types of projects, a lot of them that are impacted by this. You mentioned dams, you mentioned solar, can can both of you give us a couple more examples of, you know, these projects and how these permits impact what's happening with our clients.

Dave Plante Yeah, so I'll start and, you know, start with the kind of the 100 pound gorilla in the room is solar. And, you know, it is a very, you know, large now and very quickly expanding market for, you know, New York State for Bergman. And we have the my thing, I would say, the majority of our projects, you know, we're impacts to wetlands are occurring or are occurring under this nationwide permanent 51, which is for land based renewable energy projects, ie, Greenfield or brownfield solar projects. So you know, when this vacation back a tour of the of the law came into place, and you know, we had a number of applications, a number of projects that you know, had access roads, or panels or underground utility lines going through wetlands or streams, you know, a lot of our clients may not need to do an application or what's called a pre construction notification, but they like to have that level of security of applying, getting the authorization and having that for their financing partners, or, you know, if they're selling the project to another developer. So that's been a big one and a few of our solar clients called us or, you know, we were actually proactive with many of our clients and told them, hey, this is coming down the pipeline, and you want to be aware of it. So we've been trying to keep them informed of all these changes as they've been coming along. And, you know, luckily, you know, we're kind of at the tail end of our construction season for a lot of our projects, solar projects. So we'll be ramping back up into permitting mode over the winter, so that we can set those next set of projects up for construction in the spring and summer. So, luck A lot of this has happened in a time when we're not necessarily doing a ton of permitting. We're more in construction wrap up mode on the solar side. But Rita has a couple other examples as well.

Rita Kozak Well, Dave, I was just going to add to what you said is that, with us getting into our permitting application preparation season that we do during the winter, we do want to keep in mind that the 2022 nationwide permits are on their way. And that there might be changes that we just don't know about yet that are coming with the 2022 nationwide permits, we haven't seen a draft copy of those yet. We don't anticipate a ton of changes, just given what we've heard so far. But you know, until those are out and available for us to review, we just don't know yet. So one thing that we try to do when we're designing these projects is avoid and minimize our impacts to wetlands and streams as much as possible to reduce the need for permitting, or stay under those pre construction notification thresholds that Dave mentioned. So really, a lot of work that we're doing is looking at drawings and looking for ways that we can reduce these impacts and avoid these resources altogether, not only to make our clients lives easier without having to go through the permitting process, but to protect these resources that are on these sites that are functioning in really valuable ways.

Stacy Lake It's a great point. What does a decision maker at one of our clients do? You know, it feels like there's a lot of things that are up in the air. And as they're planning their projects, as they're looking forward. Clearly, you act as great partners for these clients and helping to steer them. But what should one of the next steps be if someone's getting ready to embark on a project or they're they're looking ahead to construction,

Dave Plante I think the biggest thing is, you know, hire a partner, you know, a firm like Berkman, or you know, someone that knows their way around the regulations and can help you help a client, you know, schedule a project. We have, you know, many times clients come to us in the middle of winter. And they're like, We need you to go out and do a wetland delineation because we want to have a shovel in the ground in the spring. And we tell them, and we have to tell them and be honest and blunt and say, We really can't do that, you know, there's six feet of snow on the ground. Here in New, you know, upstate New York, you're not going to have an accurate delineation and the regulatory agencies won't accept it. So we have to be the bearer of hard news sometimes. But you know, we tried to inform our program clients, we have a lot of program clients and our practice, we get them on that kind of a schedule that Rita talked about earlier, you know, doing all of our fieldwork in the summer and fall during the growing season, which is very important for wetland and stream delineations. Going through the consultation processes for threatening endangered species for historic resources, doing archaeological surveys, you know, in the fallen and even in the late summer. You know, it depends on the species, obviously for various endangered species. We're in the middle right now on a couple of our solar projects doing grassland raptor surveys, now is the time of year to do those surveys. So northern Harrier Chartier dowel we have one of our other senior ecologists is out twice a week doing surveys of various project sites, that helps us go into the winter, you know, doing the permitting process. If you have, you know, sensitive species that require tree clearing during the winter, bats are the big one we try and you know, time plan our projects out so that clients have their approvals in place so they can clear trees during the winter, so that we don't impact those Indiana bats or Northern long eared bats. But getting that work done site prep done, and then really going into construction once the ground is ready, in the spring and summer. So that helps us go into the winter. You know, during the permitting process. If you have, you know, sensitive species that require tree clearing during the winter, bats are the big one. We try and you know, time plan our projects out so that clients have their approvals in place so they can clear trees during the winter, so that we don't impact those Indiana bats or Northern long eared bats. But getting that work done site prep done, and then really going into construction once the ground is ready in the spring and summer.

Stacy Lake Do you and you you alluded to the fact that there's more to come every year, there's more to come on this the 2022 They're coming at us soon. So are you able to foresee what might be coming with those or what changes we might be able to anticipate for our clients in the work?

Dave Plante Yeah, so we've kind of talked about a couple of those. Rita mentioned the 2022 nationwide permits, the 2022, Water Quality Certification law. Those are going through rulemaking right now, with the federal government, the definition which seems to change every year, or every few every presidential administration of what is the water of the US what is a wetland, you know that will be finalized to over the coming year. And that's on a federal level. We also have to contend with state regulations. And I'll just give New York as an example because that's where much of our work is at Bergman and the end practice. There are various environmental groups here in the state that are trying to push through more stringent environmental laws with respect to wetlands and streams, so two examples of that. The first is New York State DEC regulates freshwater wetlands that are over 22.4 acres and smaller wetlands that are ecologically important. But a 22 acre threshold is the big one. There's been a couple of laws introduced over the past couple of years each year, there seems to be a bill introduced in our legislature to have DC regulate wetlands smaller than that, that are already under the court's jurisdiction. So that has potential large impacts on projects because DC wetlands have a protected 100 foot buffer adjacent to them. So not only do you need a permit if you impact the wetland, but you need a permit if you impact that buffer. So if we're adding millions of acres of wetlands to DCs jurisdiction, that's, you know, millions of acres of buffer as well. And so even the smallest wetland on a project site could have, you know, real implications for the development of that property if that buffer is to, to be enacted. So that's one engineer, those require an article 24 freshwater wetlands permit from Dec, which is a process a detailed process that we go through with our clients. But the second, the second bill that kind of gets pushed is been trying to push through each years, you know, the article 15 regulations for protection of waters. So right now, DC, regulates navigable waters, and waters that are Class A to C TCTs, trout spawning trout streams, class C streams, you know, with no trout trout designation, are not regulated by DC other than, you know, the impact certain amount of Class C streams, you need an individual water quality certification, but this law is trying to get all Class C streams added into the article 15 regulation. So where you would need an article 15 protection of waters permit to impact a Class B stream or a trout stream, they, the environmental groups are trying to get those Class C streams added to that, and millions of miles or 1000s of miles of of new streams under desease jurisdiction. So both of those bills, those proposed laws have either died in committee over the past few years or have not been signed into law by by the governor. So they're not law yet. But we have been monitoring those as well. And those are potential things that could have a real impact on on projects and the timing of projects.

Rita Kozak And then also going back to the federal side of things. So when the new 2022, nationwide permits come out, each state agency is going to have to issue their new 401 Water Quality certifications for the blanket for the new 2022. So what we've kind of seen in New York is the state that is really sticking out in my mind is that a lot of these projects don't necessarily like would not exceed the old blanket thresholds, but they're setting more stringent impact thresholds as part of the 401 process. So it's a project that maybe in the past wouldn't have had any DC involvement, it would have just been you know, you get your blanket water quality cert with your nationwide permit, and you're good to go. But now you the impact thresholds are lower. So you're exceeding those. So now you need an individual water quality cert, which is an additional review from the DC it's concurrent with the Corps review. But it's, you know, a whole nother level of review from the DC that in the past you might not have needed. Ohio has a similar like a similar program. Well, it's the same program. But you know, you need to Ohio, that has some rules, too, that maybe in the past, you wouldn't have needed to go to the Ohio EPA to get this individual water quality, sir. But now, you might need to with the changes in the threshold. So when they when they issue these blanket for one water quality certs for the new nationwide permits, we will really be keeping an eye on any changes from the old nationwide permits that could affect you know, these projects going forward.

Dave Plante One thing I forgot to touch on earlier that I think also we'll need to monitor as these new laws come into places. A big I wouldn't say criticism, but a big issue with the Clean Water rule that was recently vacated was the fact that we needed to do a 30 day pre application notification basically a request for a pre application meeting 30 days before submitting an application to DC or the Corps. And that goes to DC and with the vacation that has been removed. So our clients have been happy about that because they've been able to shorten that that window for submission. You know, there's not a 30 day kind of waiting period that we that we have. And then also at the end of the permitting with 30 Day neighbouring waters review, where once an individual water quality certification is issued by Dec. They submit it to the core, the core then submits it to the EPA, for review to make sure that the project does not impact waters have a neighboring jurisdiction like Ohio, Pennsylvania, you know, like Ontario, Lake Erie, Canada, etc. So that is, you know, gone by the wayside as well. So we'll need to see if any of that is added back into the new law and plan for that. But it sounds like they're really trying to understand how can they best make sure that they're consulting with other states, tribes, you know, sovereign nations like the Seneca, here in New York and others, on impacts to waterways going forward.

Stacy Lake Never a dull moment with waterways and wetlands, let me tell ya, you guys clearly have a good handle on everything that's happened. And I've only we had a crystal ball, right, where we could predict everything perfectly into the future. But it's really interesting. I thank you both for sharing all of these details with us and giving us some insight into the back and forth and the full circle that we've come in many instances here, and what our clients are dealing with and what you have your eyes on. Is there anything else? Any last final nuggets that you'd like to share with our listeners?

Rita Kozak No, I think we covered most of everything on my mind.

Dave Plante Yep, same here. I know. We'll continue to monitor things as the time goes on. And hopefully, we won't have to have another one of these in the future where everything has changed 180 degrees again, and we have to inform everybody, but we'll do it if we have to.

Stacy Lake Absolutely, absolutely. We'll keep you guys on speed dial in case anything else pops up or changes drastically. Well, we'll stay tuned to hear more about what goes on in the world of WOTUS for sure. So to our listeners, thank you for joining us again for another episode of insights by Bergman. We've got a lot more exciting topics maybe more about this topic in the future. So definitely stay tuned. And as always, you can find our episodes at Bergman pc.com/podcast or on your favorite streaming channels including Spotify, Apple podcast breaker, and many more. Thank you again, Dave and Rita for joining us. We hope everybody here has a great day and happy holidays because we're here in the middle of December and ready for the holiday season. We'll be back again in the new year.