TRANSPORTATION RESEARCH BOARD COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (AL050) THE NATURAL LAWYER. Volume 19 April, 2012 Number 2

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1 TRANSPORTATION RESEARCH BOARD COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (AL050) THE NATURAL LAWYER Volume 19 April, 2012 Number 2 Richard A. Christopher, Editor HDR Engineering, Chicago richard.christopher@hdrinc.com This newsletter is available by free of charge. Anyone who wishes to be added to the circulation list or would like to change an address should send a message to the Editor at the address listed above. This newsletter is an unedited committee product that has not been subjected to peer review. The opinions and comments in these articles do not represent the views of the Transportation Research Board UPADTING WISCONSIN DOT s WETLAND MITIGATION BANKING PROGRAM Submitted by Dan Graff, Attorney Wisconsin Department of Transportation Office of General Counsel Daniel.Graff@dot.wi.gov Transportation projects are usually linear, as they are ways for people and vehicles to get from point to point. That straight line sometimes crosses and requires filling of wetlands, which are protected under state and federal law. One option in such cases is to undertake compensatory mitigation to offset the effects of unavoidable and minimized wetland loss. 33 CFR Part 332 contains the regulatory requirements for such compensatory mitigation. Wisconsin s Department of Transportation [WisDOT] has been using the mitigation approach for certain wetlands in the development of transportation projects for approximately two decades. The mitigation is performed under WisDOT s Wetland Mitigation Banking Technical Guideline, a formal Bank Instrument agreement between WisDOT, the Wisconsin Department of Natural Resources, the US Army Corps of Engineers and other federal agencies. Originally developed and signed in 1993, it was amended by the parties in 1997 and Since 1990, WisDOT s wetland mitigation bank system has accumulated about 4700 acres of compensatory mitigation sites to 1

2 address about 3200 acres of wetland loss, for an average replacement ration of 1.4 to 1. On April 10, 2008, 33 CFR Part 332, the Corps regulatory standards for wetlands mitigation, was amended. In response, WisDOT and our regulatory partners are revising the aforementioned technical guideline where it needs to be updated or supplemented to comply with current federal wetland mitigation standards. Fortunately for Wisconsin, much of the land previously set aside for wetland mitigation banking under existing agreements to offset unavoidable transportation impacts on wetlands has been grandfathered as creditable banking under the provisions of 33 CFR 332.8(v). However, that rule requires mitigation banking instruments on or after July 9, 2008 must meet the requirements of amended 33 CFR Part 332. As a result, WisDOT and its partners are revising the umbrella wetland mitigation banking instrument. While the current version reflects most elements of the 2008 rule, greater detail and standards are needed to address public notices, mitigation sequence, performance measures and long term protection options. One item that is being addressed in this revision is the legal mechanism for long-term protection for any wetlands put into a banking program for mitigation. 33 CFR 332.7(a)(1) provides that: Long-term protection may be provided through real estate instruments such as conservation easements held by entities such as federal, tribal, state, or local resource agencies, non-profit conservation organizations, or private land managers; the transfer of title to such entities; or by restrictive covenants. Under 33 CFR 332.7(a)(5), the long-term protection mechanism must be approved in advance by the US Army Corps of Engineers. WisDOT is working on how to select long term protection mechanisms, especially for properties with wetland mitigation banks that are conveyed to private entities such as conservation organizations or local governments. Our preference would be to record a standard set of restrictive covenants and conditions applicable to the property [as is typical, for example, in condominium developments] and then make any subsequent conveyance subject to those declarations to vest the required easement or restrictive covenant property interest in state, US Army Corps of Engineers and other interested entities. Restrictive covenants are one of the allowable options listed in 33 CFR 332.7(a)(1). WisDOT s preferred approach is to develop standard language on restrictions of use of the land to maintain the wetland quality and meet the applicable requirements in 33 CRF Part 332. As a deed restriction, it could be placed on the property unilaterally and 2

3 filed with a county register of deeds while still owned by WisDOT. Candidate language would make the appropriate restrictions last in perpetuity, even when the Department no longer owned the fee title to the land, and include appropriate rights of enforcement by third parties. Our partners in negotiating the updated wetland mitigation banking guidelines have expressed a preference for a different approach for long term restrictions, a conservation easement. This has the advantage of being known by the new owner of the land. However, WisDOT is concerned with the disadvantages of requiring extensive time investment to be negotiated on a property-by-property basis in which the relevant requirement of 33 CFR Chapter 332 would need to be appropriately stated and agreed to by the land owner. Our partners in updating the technical guidance have maintained that negotiated conservation easements are needed, apparently because in some states restrictive covenants can be challenged after 30 years. In Wisconsin, however, a real property interest vested in the state cannot expire by the passage of time. In Wisconsin, the 30 year right to challenge an interest in land statute does not apply:... to any real estate or interest in real estate while the record title to the real estate or interest in real estate remains in the state or a political subdivision or municipal corporation of this state. Wis. Stat (5). The law of wetland protection in Wisconsin is in a state of evolution and is likely to change. How the long term protections and other requirements of 33 CFR Chapter 332 will be memorialized in the updated technical criteria for Wisconsin transportationrelated wetland banks is an ongoing story, and not yet finished! 9 th CIRCUIT REJECTS STB EIS FOR NEW FREIGHT RAILROAD BASED ON CUMULATIVE IMPACTS AND LACK OF BASELINE WILDLIFE STUDIES Submitted by Carollyn Lobell clobell@nossaman.com In a case addressing a wide range of NEPA issues, the 9 th Circuit reversed and remanded on several claims and upheld the EIS on others. Northern Plains Resource Council v. Surface Transportation Board, ---F. 3d ---, 2011 WL , (9 th Circuit), concerns a proposed coal hauling railroad line in Southeastern Montana. Tongue River Railroad Company, Inc. (TRRC) applied to the Surface Transportation Board (Board) or its predecessor, the Interstate Commerce Commission, three different times for railroad lines of various lengths and alternative locations for those lines. TRRC I, an 89-mile 3

4 railroad, was proposed in 1983 and approved in 1986 (although it is not yet constructed). In 1989, TRRC II was proposed to extend TRRC I by 41 miles (for a total of 130 miles). The Final EIS for TRRC II was issued in A new application was filed for an alternative alignment in The NEPA process was delayed due to TRRC s financial problems, but the Final Supplemental EIS for TRRC III (including updates to the environmental reviews in TRRC I and TRRC II) was issued in 2006 and the Board approved the project in Petitioners challenged the TRRC III EIS and project approval. The Court first evaluated several EIS analysis issues, starting with cumulative impacts. Petitioners claimed that the EIS ignored the combined impacts of future coal bed methane well development and other coal mining projects. The EIS determined there would be no cumulative impacts from nine approved coal bed methane projects because construction of the TRRC III project would not occur simultaneously with the gas wells. This conclusion was based on limiting the cumulative effects analysis to a five year period three years to construct the railroad and two years of operation. The Court found the three year construction estimate flawed, since the project had been underway for almost three decades without beginning any construction. In addition, since the Board had removed prior time restrictions for completing the project, there was no mechanism to ensure that the railroad construction would be completed within a three-year time frame. The Board argued that the five-year analysis period was standard practice because analysis beyond five years was speculative. The Court roundly rejected limiting cumulative impacts analysis to a set time frame, referencing CEQ s 1997 guidance on cumulative effects under NEPA and stating that each project is different, and the agency is required to rationally explain its decision in the context of project-specific effects. Petitioners also argued that the EIS should have considered cumulative impacts of the railroad with the Otter Creek mine. The EIS relied on the development of this mine to justify the financial soundness of the proposal, but did not analyze the cumulative impacts of the mine. The Court found that the mine was reasonably foreseeable, and its cumulative impacts should have been analyzed. On cumulative water quality impacts, the Court upheld the EIS on water quality analysis related to construction but found it deficient relative to operations, including the failure to address the Otter Creek mine. The Court upheld the EIS on the following issues: cumulative effects of nine already approved coal bed methane wells (no overlap of construction), cumulative effects on air quality and wildlife (cumulative impacts adequately addressed), and scientific method for modeling data and limiting the scope to Eastern Montana (the Court deferred to the 4

5 Board in choosing its methods and scope); overall on these topics, the Court found that the Petitioners failed to present evidence contradicting the Board s findings. The Court next evaluated the lack of baseline studies for several wildlife species and sensitive plants. The EIS included a number of mitigation measures which required future studies. The Court reiterated the requirement that the analysis to support conclusions on impacts must be prepared before the proposed action is approved, not afterward. These mitigation measures, and the EIS conclusions, assumed that the impacts could be mitigated without first understanding the extent of the problem. The Board cited to rough terrain and site access issues due to private property, but those excuses cannot relieve the Board of its requirement under NEPA to gather information before it can make an informed decision. The Court found that this was deferral which did not meet NEPA s goals to perform a hard look and to ensure relevant information is provided to the public. For the reasons noted in the baseline discussion, the TRRC III EIS relied on aerial surveys, photography and data from the earlier studies (TRRC 1 and II). The Court noted that some of the data was ten years old by the time TRRC relied on it, finding the data was stale in the circumstances of this case. The Board did not provide any support for the adequacy of this data to establish habitat and plant/wildlife populations, and thus did not constitute the hard look required by NEPA. On the last EIS analysis issue, the Court held that the geographic scope of the EIS was adequate; and the Board did not arbitrarily limit the scope to the railroad right-of-way; the scope of impact analysis was adjusted for each issue and included very large study areas for some resources, such as 7,500-acres for birds. The Court then turned to Petitioners argument that all the TRRC applications were connected and should have been addressed in one EIS. The Court focused its analysis on whether the projects had independent utility. The Court evaluated the timing of each application and concluded that when TRRC I was approved, it had independent utility. For TRRC II and II, although they did not have much utility outside of TRRC I, the Board incorporated the findings of the TRRC I EIS into the other EISs. The Court did not find that incorporation to be an error. But, because the Court had already found a number of deficiencies in the EIS, the finding was framed as one that may have been appropriate if the other defects were cured. The Board tiered its EIS to five other site-specific EIS s, including not only the Board s prior TRRC EIS s, but also analysis prepared by other federal and state agencies for a variety of projects. The Court identified two situations where tiering is appropriate under NEPA: (1) where a project of a lesser scope or site-specific statement is tiered to a program, plan or policy statement of analysis, and (2) a supplement or subsequent 5

6 statement at a later stage tiered to an early stage document. The Court found that the other agency EIS's were site-specific EIS s that did not fall into one of the two tiering situations. But, because the Petitioners failed to explain what specific analysis directly relied on incorporation of the other EIS s, the Court rejected the contention of illegal tiering. The remainder of the case addresses railroad claims, including the statutory standard for granting permission to construct the rail lines and public convenience and necessity findings. As it did with the NEPA issues, the results were mixed, upholding the action on some claims and finding others to be arbitrary and capricious. SUPREME COURT ALLOWS JUDICIAL REVIEW OF CLEAN WATER ACT COMPLIANCE ORDERS Submitted by Richard A. Christopher Richard.christopher@hdrinc.com The Sacketts owned a lot near a lake in Idaho. They intended to build a house on the lot so they filled in the lot with dirt and rock. The USEPA issued an Order informing them that they were in violation of the Clean Water Act (CWA) for filling waters of the United States without a permit. EPA contended that the lot contained wetlands adjacent to a navigable water. The Order directed the Sacketts to restore the site and provide access to the site and all pertinent records to EPA. The Sacketts asked for a hearing to contest the jurisdiction of EPA under the CWA, but the request was denied. Then they filed suit in Federal District Court for review of the terms of the Order under the Administrative Procedure Act (APA). The District Court dismissed the action and the 9 th Circuit affirmed on the basis that the CWA precluded judicial review of the Order. The first issue in the Supreme Court was whether the Order was final agency action. The Court held that the Order determined the rights or obligations of the Sacketts since the Order determined that the Sacketts had to restore the property and give access to EPA. Next the Court held that legal consequences flowed from issuance of the Order for two reasons. One is that the potential penalties to the Sacketts were doubled by virtue of the Order. The other is that the Order made it very difficult for the Sacketts to receive a permit if they chose to ask for one. Then the Court held that the Order was the consummation of EPA s decisionmaking process because the Sacketts were denied a hearing. The fact that the Sacketts were allowed to consult with EPA over the terms of the Order did little to convince the Court that EPA s actions were not final. 6

7 The next issue was whether there was another adequate remedy in a court. The Court held there was none because only EPA could initiate an action for compliance and because the Government contended that judicial review was precluded by the CWA. EPA contended that Congress gave it a choice to pursue an Order or to file an action in Court and it would undermine the statutory scheme to allow judicial review where Congress had not provided for it. The Court held that the choice between an Order and a lawsuit was a choice between voluntary compliance and forced compliance. Since the Sacketts were not going to comply voluntarily, EPA could not make the choice for them. EPA contended that the Order was just a step in the deliberative process. The Court rejected this argument because EPA had denied a hearing which would have given the Sacketts another deliberative step in the administrative process. EPA took the position that other subsections of Section 309 of CWA provided for judicial review but that the subsection providing for issuance of Orders did not. This along with analogous cases supported EPA s view that no judicial review should be allowed here. The Court rejected this argument since CWA provides for judicial review of civil litigation brought by EPA. Finally EPA argued that the statutory scheme of CWA is for efficient voluntary compliance and that judicial review of Orders would upset that scheme. The Court responded as follows: The APA s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into voluntary compliance without the opportunity for judicial review even judicial review of the question whether the regulated party is within the EPA s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity. The decision was unanimous. Sackett et vir. v. Environmental Protection Agency, No , March 21,

8 NOTES FROM THE CHAIR Submitted by Peggy Strand TRB AL050, The Committee on Environmental Issues in Transportation, is sponsoring and co-sponsoring some strong programs for the July Legal Workshop, in New Orleans, LA. You can find information at under Standing Committees. I hope that many of you will be able to attend, participate in the Committee meeting, and enjoy the Big Easy. It has been a busy few months for the environmental and regulatory programs. This issue of The Natural Lawyer addresses important recent decisions. I want to call attention to an item that may emerge in the coming months. Clean Water Act jurisdiction, since the Rapanos decision in 2006 and before, has been complex and controversial. In 2011, the Environmental Protection Agency with the U.S. Army Corps of Engineers proposed revised Guidance for determining jurisdiction. The proposed final form of the Guidance is pending for possible release during The draft Guidance specified that it was intended to bring more waters under federal jurisdiction. If finalized and similar to the proposal, Clean Water Act jurisdictional determinations could be delayed as the community learns to apply the new standards and litigation will surely ensue. Stay tuned. This is my last opportunity to address members and friends of AL05 and The Natural Lawyer as Committee Chair, since my term ends in Spring I have been enriched by the opportunity to work with this fine group of professionals. I am grateful for the wonderful job done by Rich Christopher, the many contributors to The Natural Lawyer, and the many Committee members and friends who have helped our community of environmental and transportation professionals understand pressing legal issues. The other Legal Resource Group Committee members and Chairs have enhanced our work and I have learned so much from my colleagues in the Legal Resources Group. AL050 has strong relationships with other TRB Standing Committees, and we have all benefited from the contribution that members of our sister and client committees have brought to our work. I look forward to continued relationships with our network of transportation and environmental groupies. AL050 will be in good hands under incoming Chair Janet Myers. I have had great fun being a member and Chair of AL050 and leave with good wishes for the Committee s continued success. 8

9 NEXT DEADLINE IS JUNE 15, 2012 The next deadline for submission of articles for the July, 2012 edition of The Natural Lawyer is June 15, Please send articles to and use Microsoft Word. 9