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.
