THE PERMITTING PROCESS FOR WATER PROJECTS
Wyoming's ability to control the development of its water resources is hindered in several ways by forces over which it has little control. Among the more formidable obstacles facing the state in its attempt to develop new surface water supplies is the maze of federal laws, rules, and regulations that guide the federal permitting process for new dams and reservoirs in the state. These laws, rules, and regulations derive from a series of national environmental concerns that directly affect Wyoming's ability to control its water resources. The more important pieces of federal legislation affecting water development in Wyoming are:
These five pieces of federal legislation and their implementing rules and regulations form the cornerstone of federal involvement and control of water resources at the state level. These acts also provide other individuals, organizations, and states with a variety of administrative and legal tools that can be used to delay or prevent Wyoming and other states from developing water resources as they see fit. Thus, even in situations where a state's legal entitlement to its water resources is unquestioned, rules and regulations stemming from national environmental concerns can be used to thwart the development of those water resources.
This appendix is divided into three sections as follows: Section B.2 provides a brief overview of some of the more important pieces of federal legislation affecting Wyoming's control of its water resources. Section B.3 then presents an overview of the permitting process required for water projects under these federal rules and regulations. Section B.4 summarizes how these rules and regulations can be used to thwart water development efforts at the state level.
B.2 OVERVIEW OF FEDERAL LAWS AND REGULATIONS
B.2.1 The National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) requires all federal agencies to prepare an environmental impact statement (EIS) on environmental consequences of any major federal actions or proposed legislation. Components of the environmental impact statement must include:
The definition of what constitutes a major federal action, requiring an environmental impact statement, is at the discretion of the federal agency or agencies involved. In some cases, a less detailed environmental assessment (EA) is conducted prior to making a decision as to whether a full EIS is required. As a generalization, future Wyoming water projects will probably require an EIS because such projects invariably involve the issuance of a Section 404 permit under the Clean Water Act, some changes in use for federal land holdings in the state, or some endangered species considerations. All of these considerations are viewed as major federal actions by federal agencies involved.
B.2.2 The Clean Water Act
The Federal Clean Water Act is administered by the Environmental Protection Agency, and has its objective to ". . . restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Section 404 of the Clean Water Act authorizes the U.S. Army Corps of Engineers to issue permits for the ". . . discharge of dredged or fill materials into the navigable waters at specific disposal sites," after notice and opportunity for public hearings. The Corps is authorized to prohibit, deny or restrict any project involving dredged or fill materials that will have unacceptable adverse effects upon municipal water supplies, fisheries, wildlife, or recreational resources.
As a practical matter, virtually any stream worthy of water development in Wyoming is classified as "navigable," and the issuance of a federal permit under Section 404 of the Clean Water Act is generally regarded as a major federal action requiring a full EIS under NEPA.
B.2.3 The Endangered Species Act
The purpose of the Endangered Species Act is to provide a means of conserving the ecosystems upon which endangered and threatened species depend. Determination of endangered and threatened species is made by the Secretary of the Interior, who also designates critical habitats of these species based upon the best available data. The term "conservation" as defined in the act means the use of all methods and procedures necessary to bring an endangered or threatened species to the point where such measures are no longer necessary. They include, but are not limited to, research, habitat acquisition and maintenance, propagation, and transplantation.
Before the construction of any project involving the federal government can begin (which is virtually all projects requiring a 404 permit), the lead federal agency must request the Secretary of the Interior for information on whether any species which is listed or proposed to be listed as endangered or threatened may be present in the area of the proposed action. If the Secretary advises that such a species may be present, the federal agency must then conduct a biological assessment for the purpose of identifying any threatened or endangered species which is likely to be affected. Also, any private citizen can petition the Secretary to investigate the presence of threatened or endangered species, or request a judicial review of any decision of the Endangered Species Committee. If the assessment concludes that endangered species are likely to be impacted by the project, the U.S. Fish and Wildlife Service must complete a biological opinion defining project impacts and identifying conservation measures the project proponent must implement to mitigate those impacts.
B.2.4 The Environmental Quality improvement Act
The Environmental Quality Improvement Act of 1970 established the Office of Environmental Quality, a National Council on Environmental Quality, and a professional and administrative staff to support the council. The council on environmental quality acts as an environmental "watch dog," assisting, reviewing, coordinating, analyzing, and overseeing all activities conducted by the federal government which potentially affect the quality of the environment. As a practical matter, the Council on Environmental Quality acts as an administrative body of last resort in resolving conflicts among various federal agencies regarding the environmental consequences of federal actions.
B.2.5 The Fish and Wildlife Coordination Act
The Fish and Wildlife Coordination Act defines procedures for handling endangered species considerations with respect to federal actions involving water projects. In particular, the act directs the U.S. Army Corps of Engineers to prepare a biological assessment prior to issuing a dredge and fill permit under Section 404 of the Clean Water Act to determine if any endangered species are affected by such actions. This biological assessment must then be sent to the U.S. Fish and Wildlife Service (USFWS) for review. If both the Corps and the USFWS agree that no endangered species considerations are involved with respect to the project in question, a non- jeopardy opinion is issued, and the U.S. Army Corps of Engineers is free to proceed with other aspects of the permitting process under the Clean Water Act.
If either of the two agencies believe that there is a potential for injury to endangered species, the USFWS then prepares a separate biological opinion under Section 7 of the Endangered Species Act. That biological opinion can result in a recommendation to deny a dredge and fill permit under Section 404 of the Clean Water Act, to issue such a permit, or to issue such a permit with conditions to protect endangered species.
B.3 THE PERMITTING PROCESS
The federal laws and implementing regulations described in the previous section pose an ominous set of hurdles for a state such as Wyoming attempting to develop its water resources for the benefits of its citizens. To better understand the nature of these hurdles, and the uncertainty that they portend for Wyoming's water development program, this section presents a brief overview of the permitting process that has evolved from the federal laws and regulations described in the previous section. This overview is presented in a series of steps that are somewhat arbitrary by definition, and do not necessarily correspond to steps in the process as defined by federal agencies. They do reflect the major components of the permitting process from a layman's perspective.
B.3.1 Lead Agency Definition
The first step in the permitting process is a determination of whether federal interest is involved in the project, and if so, the definition of a lead federal agency. Virtually any new surface water development project in the state of Wyoming will require federal involvement because of Section 404 of the Clean Water Act. Projects are exempted from this section of the Clean Water Act only if they involve non-navigable water ways on private land, and relatively few perspective projects of interest to the state meet this category.
The lead federal agency in the permitting process is typically the U.S. Forest Service, the Bureau of Land Management, or the U.S. Army Corps of Engineers. The U.S. Forest Service or Bureau of Land Management often take the role of lead agency if the project is located primarily upon lands that they administer; the Corps typically takes the lead if either the U.S. Forest Service or BLM defers lead agency status to the Corps.
B.3.2 Concept Design and Operating Plan
The next step in the permitting process is for the project sponsor (in this case the WWDC) to develop a concept design and operating plan for the project. For Wyoming water development projects, this function is typically carried out by the WWDC with assistance from consultants under contract to the WWDC.
B.3.3 Environmental Review
The third step in the permitting process is for the project sponsor to conduct an environmental review of the potential environmental impacts implied by the concept design and operating plan discussed in Section B.3.2 above, in the case of WWDC projects, this environmental review is typically developed by the Wyoming Game and Fish Department or consulting firms under contract with the WWDC, and submitted to the WWDC for policy review.
B.3.4 Prepare Clean Water Act Section 404 Application
The next step in the permitting process is for the project sponsor to prepare an application to the Corps for a 404 permit and supplement this application with copies of the concept design and operating plan and environmental review as described above.
B.3.5 Memorandum of Agreement
Once in receipt of the Section 404 application and supporting documentation, the Corps then develops a memorandum of agreement with the lead federal agency (if different from the Corps) or cooperating federal agencies concerning the type of environmental assessment that is necessary to evaluate the Section 404 application. Three choices are available to the federal agencies at this point concerning disposition of the applications:
Because of various provisions of the Endangered Species Act, the National Environmental Policy Act, and the Clean Water Act discussed previously, major WWDC projects are subject to the full EIS review process. (An example of a WWDC project which required only an environmental assessment was the Lake Adelaide Rehabilitation Project, which is currently nearing completion in the Big Horn National Forest in northern Wyoming.)
B.3.6 The Environmental Assessment Process
Three options exist for the preparation of an environmental impact statement (or environmental assessment). First, the lead federal agency can take responsibility for preparing the EIS; second, the Corps of Engineers can take responsibility for the EIS; or the EIS can be prepared by an independent contractor under so-called "third party agreements." Under third party agreements the project's sponsor pays for EIS preparation and the consultant is responsible to the Corps of Engineers or lead agency.
The recent EIS for the Sandstone project in southeastern Wyoming was prepared under a third party agreement under which funding for the EIS was provided by the WWDC, but direction for preparation of the EIS was provided by the U.S. Corps of Engineers. The EIS for the Deer Creek project, on the other hand, was prepared by the staff of the U.S. Army Corps of Engineers.
The assessment process itself involves the following steps:
If either (b) or (c) above is chosen, the first three steps in the environmental assessment process above are repeated. The draft EIS is finalized when all public comments with respect to the document have been addressed.
B.3.7 The 404 Decision Record
Once the environmental impact statement has been finalized, the Corps makes a decision concerning the issuance of a Section 404 Permit under the Clean Water Act, and makes a record of that decision for review by other federal agencies. Administrative rules and regulations for this decision making process and the supporting decision record are specified in the implementing rules and regulations to the Clean Water Act. These rules and regulations were one basis for a court challenge by Nebraska over the Corps' issuance of a permit to the Wyoming Water Development Commission to build Deer Creek Dam and Reservoir.
The decision record for issuance of the 404 Permit is typically available for review, but is not necessarily published. It is intended primarily as an internal review document.
B.3.8 Special Use Permits
Once a decision has been made concerning the Section 404 Permit, the project proponent must apply to other federal agencies for any needed special use permits if the project will involve changes in use of federal land holdings. If a project involves Forest Service lands, a special use permit is needed; while if the project involves Bureau of Land Management lands, an easement is needed before the project can proceed. Both the Forest Service and Bureau of Land Management can suggest conditions that should be attached to the Section 404 Permit by the U.S. Corps of Engineers prior to issuing permits or easements.
B.3.9 Environmental Protection Agency Review
Although the U.S. Corps of Engineers has the responsibility for issuing dredge and fill permits under Section 404 of the Clean Water Act, the U.S. Environmental Protection Agency (EPA) has final authority over the acceptability of such permits and associated conditions. In exercising its review authority, the EPA usually gets involved in the permitting process after the draft EIS has been issued, by requesting a "showing" of the project by the Corps under Section 404B1 of the Clean Water Act. This "showing" is typically a long letter prepared by the sponsor describing the purpose of the project and reviewing alternative sources of water that might be available for the prescribed purposes. The "showing" serves to determine the most cost effective and least environmentally damaging practicable alternative.
In recent years, the EPA has expanded its requirements for the "showing" to include statements of purpose and need for the project. This approach has been adopted by EPA with respect to Wyoming's proposed Sandstone project, where the EPA has raised the question of need as it relates to certain proportions of the planned storage in that reservoir. Wyoming officials view this review of need by EPA as a federal intrusion into Wyoming's rights when it comes to the development of its water resources.
Recently, EPA used its review authority under Section 404 of the Clean Water Act to initiate a veto process over the proposed Two Forks Dam and Reservoir southwest of Denver, Colorado.
B.4 UNCERTAINTY AND THE PERMITTING PROCESS
The previous section described general outlines of the permitting process now required under federal environmental laws and regulations to initiate new water development projects in the state of Wyoming. That discussion highlights two ways in which the state's ability to develop its water resources for its own needs can be thwarted by the permitting process. First, other states, private parties, or other project opponents can initiate lawsuits alleging violations of the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, and other federal laws and regulations that form the basis of the permitting process itself. These lawsuits, even if ultimately unsuccessful, can delay project construction for significant periods of time. Such delays can test the resolve of project proponents and certainly affect project budgets.
The prime example of such delays is Wyoming's proposed Deer Creek project, in the North Platte drainage near Casper. Lawsuits initiated by the state of Nebraska with respect to that project have delayed the start of construction by two years.
The second element of uncertainty associated with the federal permitting process is the amount of latitude that federal agencies themselves have over the permitting process. Recent decisions by the EPA with respect to the Two Forks project in Colorado illustrate the amount of latitude that is apparently available under federal law to deny project construction on environmental grounds. Another example is EPA's position that it can potentially deny construction on the basis of a lack of immediate need for some of the water to be developed by a particular project. This latter interpretation of authority by EPA is of great concern to Wyoming Water Development officials and the Wyoming Water Development Program as it directly imposes EPA into the decisionmaking process relative to state water planning.
Although the current federal permitting process for Wyoming water projects leads to a great deal of uncertainty, such planning in the future will probably be subject to even greater uncertainty due to enhanced environmental concerns at the national level. For example, the Bush administration has voiced support for a policy that would result in "no net loss" in wetlands in the United States. To date, the debate has centered on a recently executed Memorandum of Agreement between the Department of the Army and the EPA that supposedly clarifies the procedures to be used in determining the type and level of mitigation for wetlands necessary to demonstrate compliance with the Clean Water Act. Furthermore, federal wetland legislation is currently under consideration in various committees and subcommittees of Congress. While such policy and legislation may indeed have noble objectives, the latitude currently allowed to the U.S. Corps of Engineers and EPA to determine what constitutes "wetlands" could provide additional hurdles to development of Wyoming's water in the future.
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