Watching Courts, Sharpening Skill Permitting Is More Than Just Paperwork

April 14, 2004
The Clean Water Act (CWA) of today looks considerably different than when it was first adopted in 1972. Water resources professionals need to understand that CWA continues to evolve and that, as a result, permit and other compliance requirements also change. Keeping track of changing regulations, proper planning, and effective communication with the regulatory agencies might reveal that certain water resources projects are actually outside the jurisdiction of the act. Water resources professionals can improve the permitting process by keeping the following advice in mind. Monitor Court CasesCourt decisions can directly influence environmental rules and regulations. For example, depending on how California regulatory staff interpret the 5th Circuit Court’s ruling in South Florida Water Management District v. Miccosukee Tribe of Indians, the discharge of transported water may, or may not, require a National Pollutant Discharge Elimination System permit. Monitoring federal guidance letters and other interpretive documents is also an effective way to keep abreast of regulations that have changed or expired. Start EarlyAvoiding jurisdictional water is the best project strategy, but it is not always possible. Occasionally, waterways are unavoidable, and some”¹including vernal pools and ephemeral drainages–are not always apparent, since they are wet only part of the year. Getting out in the field during the planning stages will help project planners discover the jurisdictional waters, including wetlands, a project might encounter. Understanding existing conditions and the characteristics that define jurisdictional waters and wetlands will help permit processing and negotiations. Communicate With the Regulatory AgenciesBecause bodies of water plainly adjacent to navigable waterways remain under federal jurisdiction, and because hydrological connections are often difficult to understand and open to interpretation, having a good rapport with regulators will greatly benefit the permit processes. A preexisting working relationship and an open line of communication with agency staff are helpful when assessing the need for, and conditions of, CWA permits.

Speak the Language

Wetlands can occur in what appear to be unlikely places. Under some interpretations, a hayfield or seasonally wet pasture can be considered a wetland. Knowing the terminology–normal conditions, atypical situations, and reduction/oxidation features, for example”¹can facilitate delineations and permit negotiations. Water resources professionals can gain better control over the environmental permitting process by monitoring court cases, getting out in the field early, knowing the terminology, and leveraging existing relationships.