P.E. "Pam" Hudson, Esq., NAVFAC SW, Department of the Navy Office of General Counsel Michael Smith, Ph.D.,National Practice Leader, Environmental Process and Policy, WSP USA
Moderator
Fred Wagner, NAEP Elected At-Large Board Member, Partner, Venable LLP
About
This webinar mirrors the Case Law presentation provided during the NAEP 2022 Conference & Training Symposium, with updates as warranted. The webinar panel is based on a paper that reviews substantive National Environmental Policy Act (NEPA) cases issued by the United States Courts of Appeals in 2021. The implications of the decisions and their relevance to NEPA practitioners will be explained. This webinar will summarize the more detailed paper prepared for the 2022 Conference session.
The paper briefly explains, with an emphasis on the substantive NEPA findings, each opinion issued by the U.S. Court of Appeals. The paper identifies statistics regarding the NEPA appellate opinions, such as a thirteen-year record of NEPA cases, organized by circuit, and by year. The paper also identifies the agencies involved in each case and presents statistics relevant to the agencies; the paper further identifies the prevailing ratio of federal agencies, including by agency and by document type (categorical exclusion, environmental assessment, environmental impact statement). The paper analyzes the trends in the court opinions involving NEPA for 2021, with an emphasis on substantive NEPA practice, and by grouping of the cases.
Finally, each court opinion is paraphrased and organized in a manner easy to read for practitioners to find the court’s ruling. Appellate opinions are grouped and analyzed by agency. Past trends include challenges to purpose and need, alternatives considered, public comment, scientific impact assessment methodologies, GHG emissions and climate change impact assessment, incomplete or unavailable information, determination of significance, segmentation, duty to supplement, connected actions, federal actions, cumulative impact assessment, mitigation, monitoring, and adaptive management.
Waters of the United States Definition Evolution: Meandering Riffles, Pools, and Runs
August 31, 2022 9:00 AM (PT) | 12:00 PM (ET)
Speakers
Jeremy Kinney |South Carolina Department of Transportation Liaison | Special Projects Branch of the U.S. Army Corps of Engineers James Choate | Deputy District Counsel | U.S. Army Corps of Engineers Leif Palmer | Regional Counsel | Office of Region Counsel - EPA Region 4 Mary Katherine Stukes |Head of Environmental Practice | Moore & Van Allen
Moderator
Ward Marotti |Director: Land and Water Resources | Spangler Environmental, Inc.
About
Since the U.S. Supreme Court’s unanimous 1985 Riverside Bayview Homesv.US decision expanded the definition of “waters of the United States” (WOTUS) to include more than just the nation’s “navigable waters,” debate on what should be considered a WOTUS has continued and, through much of this time, been complex and heated (e.g., SWANCC v. US (2001), Rapanos & Carabell v. US (2006)). For more than a decade following Rapanos, the WOTUS definition has been based on the significant nexus test, as defined by Justice Kennedy’s plurality opinion.
Some viewed the Obama Administration’s 2015 Clean Water Rule’s expansion of the WOTUS definition as an “executive over-reach.” Opposition to the 2015 Rule was swift. Multiple federal courts enjoined the 2015 Rule, and after former President Trump’s 2017 Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, the 2015 Rule was repealed. The pre-2015 WOTUS definition was re-codified in 2019. The Trump Administration’s Navigable Waters Protection Rule (NWPR), which re-defined WOTUS, became effective in June 2020. In August 2021, the U.S. District Court for the District of Arizona remanded and vacated the NWPR nationally. The most recently proposed Revised Definition of “Waters of the United States” was published in the 7 December 2021 Federal Register. After receipt of public comments and hosting virtual public hearings, the final rule is expected to be published by the end of 2022. On a related front, the U.S. Supreme Court is scheduled to hear the Sackett v. Environmental Protection Agency case’s oral argument in October 2022. The U.S. Supreme Court’s future decision in the latest Sackett case may have a significant bearing on how WOTUS is defined.
Join the U.S. Environmental Protection Agency Region 4’s Regional Council, the USACE Charleston District’s Deputy District Council, a USACE Charleston District Regulatory Project Manager, a private practice environmental attorney, and a private environmental consultant to hear a summary of the WOTUS definition’s meandering flow path, its real-world results, as well as prognostications of its next riffle.
The Migratory Bird Treaty Act: Permitting and Perspectives
July 13, 2022 12:00 PM (PT) | 3:00 PM (ET)
Speakers
Noah Matson, Deputy Assistant Director, USFWS. Nick Morgan, Director for Mitigation Solutions, The Conservation Fund Eric Johnson, Sr. Environmental Consultant for Evergy, Avian Power Line Interaction Committee
Moderator
Mike Mayer, NAEP Vice President and Biological Resources Working Group Lead, HDR
About
The Migratory Bird Treaty Act was enacted in 1918, and passed to implement a 1916 convention with Great Britain, as the governing body of Canada. Codified at 16 USC §§ 703 – 712, the law prohibits the take of most migratory bird species that occur in the U.S. Take is defined by regulation to mean “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” Since its passage, the law has also been used to implement subsequent conventions with Mexico, Japan, and Russia. At the time of passage, the law was intended to protect migratory birds from overharvesting and the commercial wildlife market. However, a chilling study released in 2019 indicated a projected net loss of 3 billion birds in North America—approximately 29% of the 1970 abundance—suggests additional conservation is needed (Rosenberg et al. 2019).
There has been a long-standing debate on whether the law protects migratory birds from incidental take. For decades, the United States Fish and Wildlife Service used prosecutorial discretion to enforce the law in its application to incidental take. However, in 2015, the 5th Circuit Court of Appeals in U.S. v Citgo Petroleum held that the MBTA only applied to the direct take of birds. In January of 2017, prior to the end of the Obama Administration, the Department of the Interior issued a memorandum reaffirming its position that the MBTA prohibited incidental take. Later that year, the Trump Administration’s Department of the Interior issued a subsequent memorandum reversing the previous administration’s interpretation and stating that the MBTA only applied to direct take. In 2020, this memo and interpretation of the law were challenged in the Southern District of New York in Natural Resources Defense Council Inc., v. United States Department of the Interior. The court rejected the interpretation and rationale of the second memorandum. However, the Trump Administration then proposed and finalized regulations in January 2021 codifying that the MBTA did not apply to incidental take. Under the new Biden Administration, the USFWS revoked the January rule on October 4, 2021, and initiated a process to codify their interpretation that the MBTA prohibits incidental take and develop an incidental take permitting process.
This webinar will provide an update on the USFWS process and perspective from the Avian Power Line Interaction Committee and the Conservation Fund.
In this webinar our panelists will focus on:
An update on the USFWS MBTA Incidental Take Rulemaking and NEPA Processes
Perspectives from an Industry Organization and Conservation NGO
The PFAS Emergence: Is it Summer Yet? A Mid-2022 Update on PFAS Policy, Risk, and Treatment
June 23, 2022 12:00 PM (PT) | 3:00 PM (ET)
Speakers
Ned Witte, Attorney, Godfrey & Kahn, S.C. Jay Peters, Risk Assessment Practice Leader, Haley & Aldrich Scott Grieco, Ph.D., PE, Global Technology Leader, Jacobs
Moderator
Dennis Peters, Registered Environmental Manager REM, Haley & Aldrich
About
PFAS (per- and poly-fluoroalkyl substances) are a family of man-made chemicals consisting of thousands of distinct chemical structures that have been manufactured and used in a wide variety of industrial processes and consumer products for the past 80 years. Their extensive use as a key manufacturing component is due to their desirable contribution(s) to the physical properties of these products, but after nearly a century of use has resulted in a ubiquitous presence in both urban/industrial and undeveloped/natural environments. Over the past decade or more, concern pertaining to PFAS’ potential adverse health and environmental effects has been steadily increasing. PFAS resistance to natural degradation processes, our incomplete understanding of their toxic effect on human health and the environment, and the limited number of cost-effective alternatives to remove them from contact with potential human and ecological receptors, has understandably generated a flurry of scientific research and development of engineering and social solutions to mitigate these growing concerns.
The scale and complexity of challenges associated with PFAS are such that a diverse range of environmental professionals will be faced with addressing PFAS-related issues over the coming decade. As with other emerging contaminants, the initial focus has been on establishing how to find and measure PFAS presence in sediment, soil, drinking water, groundwater, surface water, wastewater/biosolids, landfill leachate, and other media of concern. There are new Federal and State regulations underway, concerns about how to best address emerging contaminants in consideration of Environmental Justice policies, and uncertainties in the impact to and potential role that natural resources will play in managing PFAS risk. This results in the need for environmental attorneys, planners & economists, natural resource specialists, toxicologists, site investigation and cleanup professionals, and other environmental professionals to work together to develop a better understanding of PFAS characteristics and risk management policies and technologies.
In this webinar our panelists will focus on what we know about:
The development of Federal and State regulatory actions
Assessing and managing risk
The challenges of and alternatives for the removal and destruction of PFAS constituents in environmental media.
After many years of study, there remains much to learn about PFAS and other emerging contaminants. Have we reached Summer in terms of growth in our understanding, or are we in a perpetual Spring of policy and knowledge germination? Please join and plan to contribute to our discussion as we consider the likely sunny and stormy PFAS future faced by environmental professionals.
An Environmental Planners Guide to the Recent Infrastructure Legislation
January 26, 2022 9:00 AM (PT) | 12:00 PM (ET)
Speakers
Fred Wagner, Esq., Partner, Venable, LLP Charles Nicholson, Senior Environmental Scientist, HDR Caroline Levenda, QEI
Moderator
Michelle Rau, PMP
About
Keeping track of the latest developments in infrastructure legislation and its effects on the environmental planning profession can easily become an all-consuming effort. NAEP has pulled together a group of industry experts to walk junior to senior-level environmental planners through the latest developments resulting from the recently signed Infrastructure Investment and Jobs Act and the Build Back Better bill. Topics will include tracking where money will be allocated, an explanation of the environmental considerations, and the effect on agency policies.
