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Environmental Blog

Texas Wetlands Experts Emphasize Clean Water Act Jurisdiction Issues and Limited Agency Resources at Texas Wetlands Conference in Austin

On Thursday and Friday of last week, January 9-10, Lauren Sidner and I attended the Texas Wetlands CLE program, chaired annually for the last twenty-four years by V&E partner Sharon Mattox, in Austin, Texas. The conference focused on practical strategies for obtaining and complying with Clean Water Act (“CWA”) Section 404 permits, along with other special considerations important to developers and consultants such as stream assessment and mitigation, policy issues, regulatory takings, the Corps’ decision making process, permittee responsible mitigation, enforcement, wetland delineations, hydraulic fracturing, endangered species, coastal public land, and ethics. The speakers included representatives of the U.S. Army Corps of Engineers, Texas General Land Office, Texas Land Conservancy, Chevron USA, HDR Engineering, Horizon Environmental Services, SWCA Environmental Consultants, Brown & Gay Engineers, and top law firms.

One theme emphasized by all speakers was the questioned future of CWA jurisdiction and how a new rulemaking by EPA clarifying the scope of CWA jurisdiction (most likely expanding it) will influence Section 404 permitting and compliance going forward. While the Corps representatives declined to comment on the draft rule purportedly leaked in November last year, they did speculate that the Corps might issue talking points on the draft rule “soon,” perhaps once the rule is formally proposed.

Another takeaway was the financial constraint under which many federal and state agencies are now operating, exacerbating difficulties in timely permitting and enforcement. Nearly all of the consultants attending the conference agreed that the unpredictability, length of time, and high costs associated with the Section 404 permitting process has pressured them to advise clients to avoid wetlands in their development plans altogether, rather than seek a permit from the Corps, or, for unconventional oil and gas wells or stream crossings, to use horizontal directional drilling under a nationwide permit.

Retired V&E partner Sharon Mattox presented a comprehensive overview and update on current trends, issues, and practical considerations for regulators, consultants, and developers dealing with wetlands permitting and enforcement issues. She also joined two retired Corps officials in a panel discussion on policy and practical issues facing the Section 404 regulatory program. I presented on the various enforcement mechanisms available to regulators, states, and private citizens under the CWA. The next Texas Wetlands CLE will be held in early 2015.

Posted at 1/17/2014 11:43 AM

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