Richmond, Virginia

With the recent United States Supreme Court decision for the Sackett v. Environmental Protection Agency (Sackett) case and subsequent update to the Waters of the U.S. (WOTUS) Rule, federal jurisdiction under the Clean Water Act (CWA) has been reduced and more regulatory responsibility has been shifted to individual states. 

In response to the changes on a federal level, the Virginia Department of Environmental Quality (DEQ) has developed the Virginia State Waters Delineator (VSWD) Certification, a program that recognizes individuals qualified to conduct wetland and stream delineations within the state. This certification program allows DEQ to rely upon the accuracy of delineations and to approve State Surface Waters Determinations (SSWDs) and issue Virginia Water Protection (VWP) permits more quickly and efficiently.

This provides a direct benefit to the private sector as DEQ will prioritize SSWD requests submitted by VSWDs, with a targeted review period of 30 days. As wetland delineations must be confirmed in order to obtain permits, a streamlined review allows the VWP permit process to be completed more quickly and efficiently.

InterAgency has obtained this VSWD certification and is prepared to assist you with your project. Let us put our experience to work for you!

For more information, contact Lauren Conner at lauren.conner@interagency.biz, or Doug Chapin at doug.chapin@interagency.biz.

WASHINGTON, D.C.

The U.S. Fish and Wildlife Service (USFWS) Final Rule listing the northern long-eared bat (Myotis septentrionalis) as endangered takes effect today, March 31, 2023. With a documented range including Virginia, Maryland and Washington, D.C., coordination on this species will be required within our region. The USFWS has issued the Interim Consultation Framework, valid through April 1, 2024, to provide guidance for projects requiring federal actions[1] and is intended to streamline project reviews.

The Interim Consultation Framework outlines:

• Northern Long-eared Bat Range-wide Determination Key (DKey) in USFWS IPaC Database

• Plan to incorporate known NLEB locations into the DKey for automatic project concurrence

• Action Agency potential determinations for proposed actions

An acoustic bat survey can provide clarification on the presence/absence of bat species within your project area. Acoustic surveys are valid for 5 years from USFWS approval. Long-term projects that require tree clearing after the Interim Consultation Framework expires in April 2024 could benefit from conclusive survey results. Our USFWS-Approved Bat Surveyor can provide assistance for your projects.

InterAgency, Inc. is tracking the information provided by USFWS and will continue to provide updates as guidance continues to be published.  To determine options for this survey season (May 15 – August 15), contact Lauren Conner at lauren.conner@interagency.biz, or Doug Chapin at doug.chapin@interagency.biz.

WASHINGTON, D.C.

In an effort to develop policies and programs to mitigate flood risk, the District of Columbia established the Flood Task Force in June 2022. The Flood Task Force aims to produce a report detailing action plans to improve flood resiliency by June 2023.

InterAgency, Inc. is monitoring the activity of this Task Force and the draft action plans that have been published for public review. The first two draft action plans were released in August and September, respectively, with a third draft action plan proposed to be released in November 2022. The proposed action items range from floodplain studies and mapping to building code updates and real property disclosure rules. The published draft action plans can be found here: Action Plans – Flood Task Force (dcfloodtaskforce.org).

Most notably, the DC Flood Task Force proposes to update the Federal Emergency Management Agency (FEMA) maps for individual watersheds and apply for a Letter of Map Revision (LOMR) as necessary. The FEMA map updates would more than double the number of buildings considered flood prone within the district.

To discuss in detail, please reach out to InterAgency’s Civil Director, Justin Donnelly, at justin.donnelly@interagency.biz.

WASHINGTON, D.C.

DC Water is making changes to permit fees, CCTV procedures, and allowable SOE practices:

1. DC Water has published a Notification for Public Review (NOPR) for Miscellaneous Fees which includes increases in developer and contractor Permit Review Fees. The purpose of this rulemaking is to add and amend DC Water’s fees and charges including, but not limited to: Engineering/Permitting fees; Fats, Oil and Grease (FOG) fee, Cross-Connection Control/Backflow Fee; Fire Hydrant Use Charges and Meter Rental Fees; High Strength Waste Fees; Hauled Waste Fees; Penalties and Turnoff Charges, Tap Fees, and other miscellaneous fees. If approved the increase in fees will go into effect July 22, 2022.

2. DC Water has recently updated their processing procedures for CCTV of existing water and sewer infrastructure. Henceforward, CCTV recordings are to be forwarded directly to DC Water by the performing contractor.

3. DC Water has recently changed its policies regarding support of excavation practices. Henceforward, piles within 50 linear feet of existing DC Water Utilities shall not be driven. Instead, such piles are to be pre-augured to the invert of existing utility (minimum) or installed using vibratory methods.

To discuss in detail, please reach out to InterAgency’s Civil Director, Justin Donnelly, at justin.donnelly@interagency.biz.

WASHINGTON, D.C.

The White House Council on Environmental Quality (CEQ) published the Phase 1 Final Rule on April 20, 2022 with a narrow set of changes that generally restore National Environmental Policy Act (NEPA) regulatory provisions that were in effect for decades before the 2020 rule modified them for the first time. The three major changes include:

1. NEPA reviews must address direct, indirect, and cumulative effects. Not just direct effects.

2. Federal agencies have more flexibility to define the purpose and need of a proposed action, which defines alternative actions. The 2020 rule required that agencies base the purpose and need on the goals of an applicant and the agency’s statutory authority.

3. “Ceiling provisions” were removed, allowing agencies to develop and implement agency-specific NEPA procedures beyond the CEQ regulatory requirements.

Phase 2 rule making is expected to be proposed later this year with broader changes to expand consideration of climate change and environmental justice in decision-making.

To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.

WASHINGTON, D.C.

DDOT is currently crafting new guidance concerning the permitting of subsurface utility vaults in public space.

In the past, DDOT has required that new utility vaults be shown on the permit application for Sheeting and Shoring.  Moving forward, DDOT will require that new utility vaults be shown on Public Space Committee applications.

The revised guidance will impact design and permitting schedules. The location, size and design of utility vaults must now be completed earlier in the process and finalized in the DDOT Public Space Committee Permit prior to Sheeting and Shoring applications.

DDOT has not provided a publication timetable for this revised guidance, but design teams should be prepared to consider vault design as early as possible in anticipation of the change.

To discuss in detail, please reach out to InterAgency’s Civil Director, Justin Donnelly, at justin.donnelly@interagency.biz.

WASHINGTON, D.C.

On April 16, 2021, the new Department of the Interior (DOI) Secretary issued Order No. 3099 (Order) stating Bureaus/Offices will not apply the 2020 NEPA Rule (2020 Rule) in a manner that would change the application or level of NEPA that would have been applied to a proposed action before the 2020 Rule took effect on September 14, 2020.

The 2020 Rule directed agencies to develop or revise NEPA procedures to implement the regulations and eliminate any inconsistencies with the revised regulations within one year.  In accordance with Executive Order 13990, the Council on Environmental Quality (CEQ) is reviewing the 2020 Rule to determine if it may adversely affect environmental justice communities, climate change, or environmental quality.  The new Order supports EO 13990 and effectively directs DOI Bureaus/Offices to follow existing DOI NEPA procedures, as well as guidance and instruction from the Office of Environmental Policy and Compliance. The Order also promotes consideration of greenhouse gas emissions and climate change impacts, Tribal consultation, and Environmental Justice engagement in NEPA.  

The Southern Environmental Law Center (SELC) virtual court hearing on the Trump Administration’s changes to NEPA is scheduled for April 21st. SELC represents 17 environmental organizations in this case and the lawsuit is filed in the United States District Court for the Western District of Virginia. Biden lawyers asked the judge to send the rule back to CEQ for reconsideration while leaving the 2020 Rule in place for now. SELC wrote in a filing they have “substantial and legitimate concerns with the 2020 Rule.” The court may declare the 2020 Rule illegal and strike it, decide the changes are legal, or decline to issue a ruling on the legality of the changes while directing CEQ to review the 2020 Rule’s NEPA changes.

To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.

WASHINGTON, D.C.

On June 16, 2020, Deputy Chief Building Official Christopher Bailey formally announced DCRA’s transition to the District of Columbia Municipal Regulations (DCMR) 2017 Title 12 code addition for building code. The adoption of the code is retroactive to May 29,2020.

Permits issued prior to the May 29, 2020 adoption can continue under the 2013 DCMR.  Permit applications submitted and accepted prior to the May 29, 2020 adoption can be processed under the 2013 DCMR.  If a permit expires for any reason, no extensions shall be granted. New permit applications must comply with  the 2017 DCMR going forward.

Permits under contract prior to the May 29, 2020 and permit applications submitted prior to May 29, 2021 shall provide DCRA with a document attesting to the following conditions:

• I the“applicant”am submitting for code review a complete permit application and construction document set.

• Submit for code review a signed & dated copy prior to May 29,2020 of the design contract for the scope of work submitted for permit, between the “designer” and the “applicant”

• I the “applicant” shall pay all permit fees within 12 months of application date

• I the“applicant”shall complete the work detailed in the approved permit.

• I the“applicant” understand, if the permit expires, no extensions shall be granted and that new permits shall be meet the 2017 DCMR.

Tenant Layout permits shall be permitted to use previous editions of the construction codes.

Revisions of a permit issued prior to May 29, 2020 are permitted to use the previous edition of the codes. Unless the Code official determines a safety risk or a new permit is required.

While the adoption of the DCMR 2017 Title 12 code was widely anticipated, some design professionals may not be aware of the transition. Please review with your team members the status of all designs in progress and double check the code review and cover sheets of forthcoming projects to make sure the correct code is referenced. Interagency will provide a crosscheck for this compliance at the outset of permit expediting services, but bear in mind that catching an un-updated code reference can have implications for time and budget.

References:

2017 DCMR 12
Section 123 Transitory Provisions
123.1 Applicability of Prior Editions of the Construction Codes
123.1.1 Permits Issued Prior to Adoption of Construction Codes
123.1.2 Applications Filed Prior to Adoption of Construction Codes
123.1.3 Applications Filed After Adoption of Construction Codes
123.1.4 Tenant Layout Permits in a New Building
123.1.5 Revisions of a Permit Issued Under a Prior Edition of the Construction Codes

To discuss in detail, please reach out to InterAgency’s Permit Director, Justin Bellow, at justin.bellow@interagency.biz.

NATIONAL

The U.S. Army Corps of Engineers (USACE) is preparing to reissue and modify the existing 52 Nationwide Permits (NWPs).  The proposal also includes the issuance of 5 new NWPs.  The Notice of Proposed Rulemaking was posted to the USACE website on August 3, 2020, and is expected to be published in the Federal Register in a few weeks.  Following publication in the Federal Register, a formal 60-day public comment period will commence.   There are several key takeaways for InterAgency clients:

Potential Changes to Expiration Date:

The current NWPs were issued in 2017 (2017 NWPs) and are scheduled to expire in March 2022.  The USACE is considering changing the expiration date of the 2017 NWPs to be the day before the proposed NWPs (2020 NWPs) take effect.  If this happens, permittees would have at least 12 months to complete a previously authorized activity provided they are under construction, or under contract to construct, before the modified NWP takes effect.

Proposed New NWPs:

• NWP A: Seaweed Mariculture Activities

• NWP B: Finfish Mariculture Activities

• NWP C: Electric Utility Line and Telecommunication Activities (currently under NWP #12)

• NWP D: Utility Lines for Water and Other Substances (currently under NWP #12)

  This would include potable water, sewage, wastewater, stormwater, etc.

• NWP E: Water Reclamation and Reuse Facilities (currently under NWPs #29, 39, 40 and 42)

Proposed Revisions to NWP #12 (Utility Line Activities):

NWP #12 previously encompassed all utility line activities.  As proposed, NWP #12 would be limited to only oil and natural gas pipelines, with other utility lines being covered under NWP C and NWP D. Note that the basic structure of NWP #12 would be retained for NWPs C and D. 

The USACE is also considering significantly reducing the number of circumstances that would require an applicant to submit a pre-construction notification (PCN) for NWP #12, as well as NWPs C and D.

Waiving PCN Requirements for Federal Agencies:

To streamline the process for federal agencies, USACE is considering limiting the PCN requirements to non-federal applicants only. 

Proposed Removal of the 300 Linear Foot Limit for Loss of Stream Bed:

Currently, NWPs #21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 have a 300 linear foot limit for the loss of stream bed.  The USACE is proposing to remove the linear foot limit and instead quantify stream impacts based on acreage.  Thus, cumulative wetland and stream impacts would be calculated consistently to determine if the total impacts are less than the ½ acre limit for the relevant NWP.

Compensatory mitigation would now be required for losses of greater than 1/10 acre of stream bed that require a PCN.   

The USACE is also considering a hybrid approach that would still quantify stream bed impacts in linear feet if there are no other impacts to wetlands.

Next steps:

Following publication in the Federal Register, each USACE District will issue a public notice requesting comments on proposed Regional Conditions for the NWPs and may also propose to revoke some of the NWPs within that District.  Each USACE District will also coordinate with Certifying Authorities (i.e. states, authorized tribes and/or the US Environmental Protection Agency) regarding Clean Water Act Section 401 Water Quality Certification (WQC) for the NWPs.  The Certifying Authorities will have 60 days to issue, deny or waive WQC.

InterAgency’s environmental permitting experts will continue to track developments carefully and assist clients in effectively navigating the federal environmental review process. To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.

WASHINGTON, D.C.

For the first time in over 40 years, the Council on Environmental Quality (CEQ) comprehensively updated its regulations for Federal agencies to implement the National Environmental Policy Act (NEPA). The Final Rule was published in the Federal Register on July 16, 2020. It is an attempt to clarify and codify a wide range of NEPA case law and guidance documents such that the regulations can be applied more consistently across all federal agencies.  Subject to congressional review, the new NEPA regulations will take effect on September 14, 2020. There are several key takeaways:

(1)    The definition of “effects” has been revised, removing references to direct, indirect, and cumulative effects. The intent is to focus on effects that have a reasonably close causal relationship to the proposed action. This helps to cut the extent and duration of analysis, but it may not accurately reflect the potential combined effects of other projects in the area.

(2)    The definition of “major federal actions” is limited to actions that significantly affect the quality of the human environment, and now specifically excludes actions with “minimal federal funding or minimal Federal involvement.”

(3)    “Exhaustion” is a newly-defined term which specifies that parties may not initiate legal claims based on issues they did not raise during the public comment period.

(4)    The new limits on page count and review duration are 75 pages and 1 year for an Environmental Assessment (EA), and 150 pages and 2 years for an Environmental Impact Statement (EIS). It should be noted that time limits can be extended with approval of a “senior agency official” and page limits can be bypassed by moving detailed discussion to the appendices.

(5)    The use of Categorical Exclusions (CE) will likely be expanded since agencies are now able to use other agencies’ CEs, when appropriate.

The Final Rule is viewed by some as improving the efficiency and predictability of the NEPA process.  Others anticipate that the proposed changes could result in negative impacts to human health and the environment.  The controversial nature of many of these changes coupled with the upcoming presidential election in November creates a high potential for legal challenges and uncertainty for project approvals under the new NEPA regulations.

InterAgency’s environmental permitting experts will continue to track developments carefully and assist clients in effectively navigating the federal environmental review process. To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.

WASHINGTON, D.C.

According to Branch Chief, Julienne Bautista, beginning in June 2020, The District Department of Energy and the Environment (DOEE) will no longer issue environmental approvals in advance of the conclusion of Environmental Impact Screening Form (EISF) review process.  This interpretation of DCMR Title 20, Section 7203.6 means that applicants will not be able to obtain Erosion and Sediment Control (ESC) approvals, Stormwater Management (SWM) approvals, or Green Area Ratio (GAR) approvals prior to the finalization of an EISF process.

20 DCMR 7203.6    No agency shall issue any license, permit, certificate, or authorization until completion of the environmental impact review process by the lead agency.  Final Rulemaking published at 44 DCR 2799 (May 9, 1997)

 This interpretation defeats the primary intent of DCRA’s BCIV Permit—to accelerate review and approval of ESC and SWM plans.  Where previously, a applicant could obtain DCRA permits to perform ground clearing operations, excavation, sheeting and shoring, and foundation work prior to the EISF approval, the EISF process will need to be concluded before any substantial ground disturbing activities are conducted.  InterAgency will track this issue closely to see how this code reinterpretation effects the building industry and what it means for your construction projects moving forward.  To discuss in detail, please reach out to InterAgency’s Civil Director, Justin Donnelly, at justin.donnelly@interagency.biz.

VIRGINIA

In April 2020, the Virginia Legislature approved a Governor’s Budget Amendment associated with the Hampton Roads Bridge-Tunnel (HRBT) migratory bird mitigation provision (House Bill 29, Item 372) that could have implications for construction projects state-wide.  In addition to granting authority to the Virginia Department of Game and Inland Fisheries that is specific to HRBT, the amendment includes the following:

“D.4. Any agency that exercises authority granted in paragraph D.1, or that issues any permit that has an adverse impact on fish and wildlife or their habitat, may require compensatory mitigation for such adverse impact as a condition of issuing the permit.

a.       For the purposes of this section, “compensatory mitigation” means addressing the direct and indirect adverse impacts to fish and wildlife and their habitats that may be caused by a construction project by avoiding and minimizing impacts to the extent practicable and then compensating for the remaining impacts.”

It remains to be seen how this wording will be implemented by state agencies such as the Department of Environmental Quality, Marine Resources Commission, and Department of Historic Resources.  The wording *could* be interpreted to apply to any construction project in Virginia with clearing of trees that could provide habitat to migratory birds or threatened and endangered species.  If so, potential implications may include pre-construction surveys, time of year restrictions for tree clearing, and compensatory mitigation requirements to address adverse impacts on fish and wildlife habitats. Examples of compensatory mitigation agreements include environmental restoration projects, purchase of mitigation bank credits, or in-lieu payments to existing state wildlife funds.  InterAgency will track this issue closely to see how Virginia state agencies respond and what this means for your construction projects moving forward. 

To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.