Regulatory Update – Spring 2023

By MAP Environmental Inc. | February 28, 2023

Environmental Regulatory Update


As we continue to navigate the dynamic arena of environmental regulations, MAP Environmental Inc. (MAP) staff are focusing on a few distinct but impactful changes to the Hampton Roads Community.


Federally Threatened and Endangered Species- Northern Long Eared Bat

The U.S. Fish and Wildlife Service (USFWS) recently published a final rule reclassifying the Northern Long-Eared Bay (NLEB) from threatened to endangered under the Endangered Species Act (ESA). This change, which was originally scheduled to take effect on January 30, 2023, will become enforceable on March 31. Under the new rule, tree removal on certain projects is prohibited from April 1 through November 14 of each year. USFWS is currently creating project streamlining tools to avoid lengthy delays for projects proposing minimal tree clearing or which lack suitable forested/ wooded habitat. These tools are anticipated to be published prior to March 31, 2023.


State Threatened and Endangered Species- Canebrake Rattlesnake

In 2011, the Department of Wildlife Resources (DWR) published a Conservation Plan outlining actions needed to protect the state-endangered Canebrake Rattlesnake. The Conservation Plan included developing a mitigation bank system specifically for this species, and recent projects have required the purchase of off-site Canebrake Rattlesnake credits to address the loss of essential habitat. It is anticipated that these requirements- which include purchasing credits at a ratio of 1:1 to 10:1 depending on habitat quality and location- will continue to be placed on projects for the foreseeable future.


Waters of the United States

Since the Clean Water Act was passed in 1972, the definition of Waters of the United States (WOTUS) has evolved and endured multiple changes. Most recently, the Army Corps of Engineers (USACE) reverted from the Trump-era Navigable Waters Protection Rule (NWPR) to the original regulatory definition established in 1986/1988. A revised definition of WOTUS, published in the Federal Register on January 18, 2023, will go into effect on March 20. The Revised Rule closely resembles the 2015 definition of WOTUS, which placed significant emphasis on the “nexus” between traditional navigable waterways and inland waters. As the “nexus” test is currently being challenged in the Supreme Court (Sackett v. EPA), another definition of WOTUS may emerge following the Supreme Court’s decision anticipated in June.


In spite of the many vagaries in the regulatory arena, MAP remains committed and steadfast in providing consistent and timely environmental solutions to our clients. We look forward to writing additional “success stories” throughout this next wave of change.