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Capital Report

2018:  MARCH

March 2018 Issue

Supreme Court Makes Decision On WOTUS Challenge Jurisdiction

In January, the U.S. Supreme Court issued a decision concerning rule-making over the definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (CWA), or the WOTUS Rule. According to Van Ness Feldman, the WOTUS Rule, which redefined jurisdictional “waters of the United States” under the CWA, has far-reaching implications for project development across energy, water, agricultural, construction and transportation sectors.

Although the Supreme Court’s decision merely resolves a jurisdictional dispute between the federal courts of appeals and the federal district courts over which court has jurisdiction to hear challenges to the WOTUS Rule, the decision will result in the lifting of the existing stay of the WOTUS Rule, opening the door to disparate approaches to jurisdictional determinations under the CWA across the country.

The decision has significant implications for the fate of the WOTUS Rule and how federal agencies review permit applications that may affect jurisdictional waters under the WOTUS Rule. In particular, the numerous legal challenges to the WOTUS rule that were previously raised in district courts are likely to resume, but pending resolution of those challenges, implementation of the WOTUS Rule—which expands federal control over several types of water bodies—would be legally permissible.


Five Recipients Get Ocean Awareness Awards

The National Marine Sanctuary Foundation announced more than $140,000 in Ernest F. Hollings Ocean Awareness Awards to protect endangered species, engage children in science and increase awareness about U.S. national marine sanctuaries.

The foundation selected five recipients for this year’s awards. Two projects—Space to Sea: A Photographic Journey into Stellwagen Bank National Marine Sanctuary and Robust Citizen Science Data for West Coast National Marine Sanctuaries—support the foundation’s goal to inspire stewardship of natural and cultural resources through U.S. marine and Great Lakes sanctuaries.

Three projects, funded with support from NOAA’s National Marine Fisheries Service—School and Community Leatherback Sea Turtle Project, Killer Whale Tales: Kids Making a Difference Now, and Global Action Explorers: Empowering Students for Action on Ocean Acidification—bring awareness to endangered and protected marine species, in partnership with NOAA’s Species in the Spotlight initiative.


BOEM Issues Guide for Offshore Wind Design Approach

The U.S. Bureau of Ocean Energy Management (BOEM) now has draft guidelines for the use of a “design envelope” approach in construction and operations plans for offshore wind energy facilities in the U.S. In order to take advantage of the rapid pace of technological development in the offshore wind industry, offshore wind developers have asked BOEM to adopt this practice, which is standard in some European countries, for permitting offshore wind energy projects. This would afford developers a degree of flexibility and allow them to make certain project design decisions—such as which turbines to use—at a more commercially advantageous time later in the project development process.

Last August, the Trump Administration announced Executive Order 13807 to streamline the review and permitting of infrastructure projects. The design envelope approach would allow BOEM to analyze the environmental impacts of the proposed project in a manner that could reduce or eliminate the need for subsequent environmental and technical reviews. The use of a design envelope is not mandatory. Design envelopes are an optional tool for prospective developers.


Trump Acknowledges Need To Invest in US Ports

In his first State of the Union address, U.S. President Donald Trump called on Congress to pass an infrastructure bill that generates $1.5 trillion in infrastructure investments and streamlines permitting for major capital projects from 10 to two years, or possibly less.

In his focus on America’s “crumbling infrastructure,” the president placed a heavy emphasis on safe, reliable, modern transportation infrastructure, including roads, bridges, highways, railways and waterways.

He also talked about two other issues important to ports: international trade deals and investing in workforce development and training.

Seaport cargo activity accounts for 26 percent of U.S. GDP and more than 23 million American jobs, and generates more than $320 billion annually in federal, state and local tax revenues. The American Association of Port Authorities (AAPA) has identified $66 billion in federal port-related infrastructure investments over the next 10 years. These federal investments are necessary to supplement the approximately $155 billion in capital improvements that U.S. port authorities and their private sector partners are planning between 2016 and 2020.


Trump Announces Pick For USGS Director

U.S. President Donald Trump has nominated Dr. James Reilly of Colorado to be director of the United States Geological Survey (USGS). Reilly currently serves U.S. and allied militaries as an expert on space operations, and he is a technical advisor supporting the National Security Space Institute of the U.S. Air Force. Previously, Reilly held management positions in academia, as well as at TAEUS Corp. and PhotoStencil Corp. in Colorado Springs. He had a 13-year career at NASA. Prior to NASA, he was chief geologist at Enserch Exploration Inc., working projects around the world, including in Antarctica and on the continental slope of the Gulf of Mexico.  

2018:  MARCH

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