Re: Implementation Of National Marine Fisheries Service .

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HUNTON & WILLIAMS LLP2200 PENNSYLVANIA AVENUE, NWWASHINGTON, D.C. 20037-1701TEL 202 955 1500FAX 202 778 2201DEIDRE G. DUNCANDIRECT DIAL: 202 955 1919EMAIL: dduncan@hunton.comMarch 30, 2015FILE NO: 29142.080061The Honorable Jo-Ellen DarcyAssistant Secretary of the Army, Civil WorksDepartment of the Army108 Army PentagonWashington, DC 20310Re:Implementation of National Marine Fisheries Service Biological Opinion on U.S.Army Corps of Engineers’ Nationwide Permit ProgramDear Assistant Secretary Darcy:We submit this letter on behalf of the American Gas Association (AGA), American PetroleumInstitute (API), Edison Electric Institute (EEI), Interstate Natural Gas Association of America(INGAA), and Utility Water Act Group (UWAG). These organizations represent a large crosssection of the nation’s energy and infrastructure sectors. These sectors rely on nationwidepermits (NWPs) issued under the Clean Water Act (CWA) for their operations, maintenance, andnew construction.We are writing to identify serious deficiencies in the National Marine Fisheries Service (NMFS)Biological Opinion (BiOp) on the U.S. Army Corps of Engineers’ (Corps) Nationwide PermitProgram (November 2014) (hereinafter, 2014 BiOp), and to raise several important concernsabout the Corps’ implementation of the NMFS BiOp. Specifically, we request: An opportunity for public comment on any implementation guidance to Corps Districts; Clarification of circumstances in which a pre-construction notification (PCN) may berequired for NWPs 12, 13, 14, and 36, in connection with the addition of impervioussurface cover to waters of the U.S.; The addition of exemptions from any new impervious surface PCN requirements for deminimis amounts of impervious surface cover added and for instances where the proposedactivities result in a net neutral or reduced impact on overall impervious surface cover; Adequate opportunity for and consideration of public comments on the rulemaking forNWPs 12, 13, 14, and 36;ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELESMcLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO WASHINGTONwww.hunton.com

The Honorable Jo-Ellen DarcyMarch 30, 3015Page 2I. That the Corps evaluate the validity or benefit of the measures identified in the 2014BiOp, provide the public with an opportunity to comment on those measures, andconfirm that it has not prejudged the outcome of any NWP-related rulemaking; and That the Corps avoid unnecessary disruption or burdens on the important public andcommercial activities that use NWPs by taking a circumspect and judicious approach toadding any new restrictions or requirements in the 2017 NWPs.Corps and NMFS ESA Section 7 Consultation on NWP ReissuanceThe Corps reissued the NWPs on February 13, 2012, and they went into effect on March 19,2012. On February 15, 2012, NMFS issued a programmatic BiOp on the Corps’ overall NWPprogram (hereinafter, 2012 BiOp). Although the NWP “program” is not a discrete agency actionsubject to consultation, NMFS proceeded to issue a biological opinion on the program and tomake a finding that the program was not adequately structured to “ensure against jeopardy.”This finding was itself improper: a biological opinion must determine whether an action is likelyto cause jeopardy, not whether a program is structured to prevent jeopardy. Nonetheless, theCorps requested reinitiation of consultation with NMFS.In an October 2012 letter to NMFS, the Corps clarified that reissuance of the NWPs had “noeffect” on listed species and did not require consultation under section 7 of the EndangeredSpecies Act (ESA), but agreed to continue consultation with NMFS on a “voluntary basis.” OnDecember 14, 2012, a coalition including the undersigned organizations submitted a letter toNMFS, identifying numerous and substantial deficiencies and inaccuracies in the 2012 BiOp.1In particular, the 2012 BiOp suffered from a serious misunderstanding of the Corps’ NWPprogram; failed to make a finding that jeopardy or adverse modification is “likely” or provide afactual basis for an affirmative jeopardy or adverse modification finding as required by the ESAand applicable regulations; and failed to comply with regulatory requirements.NMFS issued a new BiOp on the NWP program on November 24, 2014. The 2014 BiOpconcludes that, with the implementation of certain new protective measures agreed to by theCorps, as well as the other existing protections of the NWP program, the NWP program is notlikely to jeopardize the continued existence of listed species or destroy or adversely modifycritical habitat. The new 2014 BiOp replaces the prior 2012 BiOp. Unfortunately, the 2014BiOp does not address many of the concerns raised in our December 2012 letter. We areequally, if not more, concerned about the flaws in the new 2014 BiOp and the Corps’ plannedapproach for implementing the 2014 BiOp.1See Letter from American Farm Bureau, et al., to Eric C. Schwaab, Acting U.S. Department of CommerceAssistant Secretary for Conservation and Management (Dec. 14, 2012), included as Attachment 1.

The Honorable Jo-Ellen DarcyMarch 30, 3015Page 3II.NMFS’ 2014 BiOp and the Corps’ Agreement to Implement the 2014 BiOp RaiseSerious ConcernsThe 2014 BiOp, like the 2012 BiOp before it, suffers from a number of legal infirmities. TheCorps’ agreement to implement the 2014 BiOp thus raises a number of serious concerns. Manyof our concerns were discussed in detail in our December 2012 letter. The following is asummary of some of our major concerns with the 2014 BiOp: The 2014 BiOp Incorrectly Treats the Overall NWP Program as a Discrete ActionSubject to Consultation. Like the 2012 BiOp, the 2014 BiOp wrongly treats the overallNWP program as a discrete “action” properly subject to ESA section 7 consultation. TheNWP program is comprised of a variety of components, only some of which could beproperly characterized as “actions” when taken. The 2014 BiOp Incorrectly Treats its Provisions as Mandatory Despite RecognitionThat Corps Undertook Consultation Voluntarily. The 2014 BiOp recognizes that theCorps “voluntarily” participated in consultation, yet treats the consultation as mandatoryby making a “no jeopardy” determination tied to the Corps’ agreement to undertakecertain protective measures. If the Corps fails to undertake any of these protectivemeasures, or if certain other circumstances arise (e.g., listing of new species that may beaffected), the 2014 BiOp purports to require reinitiation of formal consultation. 2014BiOp at 357. Thus, despite the fact that the NWP program is not an “action” subject toconsultation, and the Corps’ determination that section 7 consultation was voluntary, the2014 BiOp incorrectly treats its provisions as mandatory, suggests that reinitiation offormal consultation would be required in certain circumstances, and purports to bind theCorps to implement certain protective measures. The 2014 BiOp Fails to Recognize the Highly Protective ESA Elements of the NWPProgram. Our December 2012 letter discusses in detail the NWP program’s numerousprotections for listed species and designated critical habitat. The 2014 BiOp makes a “nojeopardy” determination tied to the Corps’ agreement to undertake certain protectivemeasures, but requiring the Corps to implement these protective measures ignores theextensive protections already provided through the NWP program. For example, the2014 BiOp provides that the Corps will conduct rulemaking to modify NWPs 12, 13, 14,and 36 to require PCN for proposed activities that add permanent impervious surfacecover in waters of the U.S. in watersheds inhabited by listed species and designatedcritical habitat under NMFS’ jurisdiction, 2014 BiOp at 68, but General Condition (GC)18 already requires a PCN for a wide range of circumstances in which there is somepotential for effects to listed species or critical habitat, such as where listed species orcritical habitat “might be affected” or are “in the vicinity” of the project. The BiOp

The Honorable Jo-Ellen DarcyMarch 30, 3015Page 4provides no demonstration that this new PCN requirement is necessary in light of GC 18,and does not explain why the requirement would not be duplicative and wasteful.In sum, the NWP “program” is not a discrete agency action subject to consultation, the 2014BiOp was not necessary, and the 2014 BiOp suffers from numerous deficiencies. The examplesprovided herein are an illustrative, rather than exhaustive, list. Accordingly, the undersignedorganizations have serious concerns with the Corps’ consideration of implementing the BiOp.III.The Corps Should Consider These Five Recommendations for Implementation ofthe 2014 BiOpThe undersigned organizations also have serious concerns regarding the specific approaches thatthe Corps may take to implement the 2014 BiOp. The following are some of our majorconcerns, including, as appropriate, recommendations for implementation of the 2014 BiOp: The Public Should Have The Opportunity to Provide Input on All ImplementationGuidance. We understand that the Corps anticipates developing separate guidancedocuments for implementing the different protective measures identified in the 2014BiOp. It is critical that the Corps solicit public input on the proposed language of theseguidance documents. Allowing for public comment benefits the Corps’ regulatoryprogram – and the regulated community – by providing a mechanism to better understandand discuss how the guidance documents will practically affect the NWP permittingprocess. Moreover, public involvement is critical because these guidance documents arelikely to have implications beyond the NWP program. For example, the Corpscommitted to issue guidance on conducting cumulative effects analyses for the purposesof the National Environmental Policy Act (NEPA), CWA Section 404(b)(1) Guidelines,and the ESA. 2014 BiOp at 67. The language in the 2014 BiOp suggests that thisguidance will be used by the Corps not just for the NWP program, but in all types ofCorps permitting. Such a major change to the Corps’ regulatory program should besubject to public review and comment. The Corps Should Clarify Circumstances in Which the PCN Requirement Does NotApply to NWPs 12, 13, 14, and 36. The Corps has committed to conduct a rulemakingto modify NWPs 12, 13, 14, and 36 to require PCN for activities that add impervioussurface cover2 in waters of the U.S. in watersheds inhabited by listed species anddesignated critical habitat under NMFS’ jurisdiction. We understand that this PCN2The 2014 BiOp relies on a National Research Council definition of “impervious surface,” which definesthe term as “a hard surface area which either prevents or retards the entry of water into the soil. Commonimpervious surfaces include roof tops, walkways, patios, driveways, parking lots or storage areas, concrete orasphalt paving, gravel roads, packed earthen materials, and oiled surfaces.” 2014 BiOp at 269.

The Honorable Jo-Ellen DarcyMarch 30, 3015Page 5requirement is limited to impervious surface cover added by the permanent placement offill material into waters of the U.S. In any proposed rulemaking, we request that theCorps clarify circumstances in which the PCN requirement does not apply. It would notinclude, for example, impervious surface added to uplands, or impervious surface coveradded by temporary fill for construction of a pipeline. Nor would a wood support pole beconsidered to be an addition of impervious surface cover. It is important for prospectivepermittees and District staff that the Corps clarify what activities will trigger the newPCN requirement. The Corps Should Provide a De Minimis Exception to the PCN Requirement forNWPs 12, 13, 14, and 36. We understand that the Corps intends to treat the addition ofany permanent surface cover (even a square inch) to waters of the U.S. as triggering thePCN requirement. This would mean that even a de minimis addition of permanentimpervious surface cover would trigger the PCN requirement for NWPs 12, 13, 14, and36. Requiring PCN for a de minimis addition of impervious surface cover willsubstantially increase burdens for NWP permittees and for the District staff. It will slowthe NWP approval process without providing commensurate benefits for protection oflisted species and designated critical habitat. Indeed, there may be little utility in usingNWPs 12, 13, 14, and 36 if even a de minimis addition of impervious surface covertriggers the costly and burdensome PCN requirement. Accordingly, we request that theCorps consider providing a de minimis exception to this PCN requirement. The Corps Should Provide An Exception to the PCN Requirement Where There Is aNet Neutral or Reduced Impact on Overall Impervious Surface Cover in Waters ofthe U.S. Again, it is problematic that the Corps would view any addition of impervioussurface cover as triggering the PCN requirement for NWPs 12, 13, 14, and 36. Theremay be instances, for example, where an activity would add some amount of impervioussurface cover, but the prospective permittee plans to perform mitigation such that theproposed activity would result in a net neutral or reduced impact on overall impervioussurface cover. In those instances, proposed mitigation could offset the addition ofimpervious surface cover and eliminate the need for a PCN. We recommend that theCorps provide an exception to the PCN requirement for NWPs 12, 13, 14, and 36 wherethere is a net neutral or reduced impact on overall impervious surface cover. The Agencies May Not Prejudge the Outcome of Rulemaking on NWPs 12, 13, 14,and 36. Through this ESA section 7 consultation process and, going forward, the threatof “requiring” a reinitiated consultation on that program if the Corps fails to implementthe identified protective measures, NMFS is exercising inappropriate influence over anddriving a Corps CWA regulatory program. Equally concerning is the Corps’commitment to make burdensome, uncertain, and unnecessary rulemaking changeswithout public involvement and prior to public notice and comment. In particular, NMFS

Mar 30, 2015 · The 2014 BiOp, like the 2012 BiOp before it, suffers from a number of legal infirmities. The Corps’ agreement to implement the 2014 BiOp thus raises a number of serious concerns. Many of our concerns were discussed in detail in our December 2012 letter. The following is a summary of some o

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