Implications of the Rappanos Case on Current Development

The last few months’ blogs have provided a background for the Rappanos case and outfalls, but what does it really mean to the regulated. Now that the COE has prepared its guidance and completed initial field training of its staff, what will this case mean to the regulated community (i.e., developers and contractors)? An active project is presented to generate discussions on the actual implications to developers and what might be done to expedite the process.

A family farm containing rolling meadows, perennial stream, pond, wetlands, and drainage swales or areas was purchased for construction of residential dwellings. The potential impacts to “waters of the state” were greater than 300 feet and an individual permit (IP) through the COE would be required. Here’s the permitting process and schedule:

Blackout period (2006 – 5 June 2007) for pre-application site visits.

Nationwide permits reauthorized but without state water quality conditions.

States had to prepare conditions and go through public notice process, which resulted in several months delay in permit approvals.

COE application submitted in May 2007.

Coordinating agencies (SHPO, USFWS, DNR, Public Lands, and 401 Water Quality) were contacted directly in May 2007 and clearance letters were obtained.

Stream and wetland delineation report submitted in June 2007.

Jurisdictional determination accepted in late August 2007. (Delay due to new guidance and training of COE staff)

Archaeology work completed and approved in September 2007.

Public notice published by the COE on 17 September 2007.

Mitigation plan submitted to all agencies and COE in early October 2007.

Alternatives analysis, water resources study, and other undetermined requirements needed by COE to complete the IP package being prepared in October and November 2007.

Regulatory timetable for authorization of IP is a minimum of 120 days following completeness review.

Possible project approval date is end of December 2007 due to political influence.

The reauthorization of Nationwide permit process (no pre-application site visits), regulatory process for approval of state water quality conditions, and the Rappanos decision have resulted in an extended permitting process, loss of summer and fall construction seasons, possible loss of matching federal monies, and additional labor for both regulators and engineering contractors. The current IP process will be a minimum of 8 months even with the consultant’s contacting coordinating agencies directly, providing of plans in anticipation of COE requests, and political pressure. As a colleague said in passing, “ Maybe we could draft the permit for COE to help them out”, how else can the regulated help?