The ARDA Newsletter      November 2022 
Regulatory Update: Permit Reform Impacts on Rail Development 
By: Laura Mona
General Attorney, Environmental
BNSF Railway Company
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One of the most challenging steps in rail development is navigating the environmental permitting process and securing permits within a reasonable timeframe.  This process can be long, complex, and costly, and has been plagued with fluctuating regulatory regimes for years.  Key regulations are currently under review by federal agencies and courts, with the U.S. Supreme Court (“SCOTUS”) taking up a challenge to a major regulation this term. With so many changes on the horizon, here is brief look at key late actions and why they matter to rail development.
Waters of the United States (“WOTUS”)
Foundational to several regulatory regimes is which aquatic features (lakes, rivers, tributaries, wetlands, etc.) are considered “Waters of the United States” (“WOTUS”) and, therefore, subject to federal jurisdiction.[1]  If a feature meets the definition of WOTUS, discharges or impacts to that feature may require certain permits and authorizations. For example, US Army Corps of Engineers (“USACE”) permits are often triggered where construction of new rail track or infrastructure cross a feature that is a WOTUS. 
Larger impacts to one WOTUS or cumulatively to multiple may trigger additional reviews including National Environmental Policy Act (“NEPA”) or individual Section 401 Water Quality Certifications (“401 WQC”), two programs also under review and discussed below.  As the number and type of features regulated as WOTUS expands, so too grows the number of permits required and potential for triggering NEPA or the 401 WQC requirements.
Where We Are
What exactly is considered a WOTUS has been fraught with uncertainty for decades.  Well-intentioned attempts to bring clarity to the federal definition have brought fluctuating regimes, ambiguity, and legal challenges.

We are excited to announce the 2023 ARDA Executive Forum registration is now open! The Executive Forum themed 'Vision' will kick off on February 1st and end on February 3rd at the Grand Bohemian Hotel in Orlando, FL. 
Click the link below to register today and take advantage of early-bird pricing! Additional information about the event can be found on our website. 
We are excited to see you there!
ARDA Leadership

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American Railway Development Association | PO Box 1092, Tallahassee, FL 32302


The  American Railway Development Association (ARDA) is a not-for-profit educational trade association founded in 1906 to promote Economic Development, Real Estate Development, Technology, and Environmental Activities of the North American Railroads.   The objectives of the Association are to foster the industrial, real estate, natural resources, market development activities and environmental concerns of the North American railroads; and through the advancement of ideas and education of its members, further promote the effectiveness of railway development and related work. For more information, visit the ARDA website at