Endangered Species Act, Wetlands, and Stormwater Regulatory Compliance for Energy & Utilities

Live Streaming Online September 12-13, 2022

A Program

Click Here to register ($1695) (Includes Migratory Bird Workshop

If you are unable to attend at the scheduled date and time, we make recordings available to all registrants for three business days after the event

Environmental permitting affects many utility projects in the United States. Often, these processes impose delays, constraints and additional costs that are not anticipated by the project team. The goal of this course is to provide attendees with a broad understanding of many of the commonly encountered permitting processes associated with construction, maintenance and operational activities. 

This course will strive to inform attendees of when permitting may be necessary and to provide an understanding of the process for navigating these permitting processes. Relying on experience working on hundreds of previous projects on these subjects, course instructors will provide case studies to highlight lessons learned and successful approaches. An additional goal of this course will be to provide attendees with tools to make environmental permitting a more efficient component of their organization’s project management. 

Learning Outcomes

  • Review utility and energy project activities that are likely to “trigger” environmental regulation under Clean Water Act, Endangered Species Act, and National Environmental Policy Act
  • Discuss the basis and intent of these regulations
  • Identify endangered vs. threatened species, critical habitat designation, consultation process, penalties, and more when it comes to the Endangered Species Act
  • Define the National Historic Preservation Act, as well as the actions that may cause adverse effects, potential historic properties, and more
  • Review the Clean Water Act, including Sections 303, 401, 402, and 404
  • Study Nationwide Permits and discuss what it does, where it’s used, special considerations, etc.
  • Gain insight on the National Environmental Policy Act such as its history, regulations, requirements, and reforms
  • Review what’s included in the Coastal Zone Management Act



9:00 a.m. – 4:30 p.m. Central Time

Clean Water Act

  • History of the Federal Clean Water Act
  • Significance/Applicable Sections

CWA – Section 303 Overview

CWA – Section 402

  • National Pollution Discharge Elimination System (NPDES)
  • Typically Administered by States
    • Construction Stormwater Permitting
      • When required
      • General vs. individual permit
      • Inspection, monitoring, and documentation
      • Termination
    • Industrial Site Stormwater Permitting
      • Permitting options and requirements
    • Municipal Separate Storm Sewer System (MS4) Permitting
      • Types of MS4s
        • Cities/towns
        • Transportation right-of-ways
        • Non-standard MS4s
      • Components and requirements
    • Dewatering Permitting
    • Groundwater
      • When required
      • Permitting process and monitoring requirements
    • Construction
      • Temporary in nature
      • Permitting process
    • Stormwater Permitting Resources
      • Site characterization
      • Template appendices
      • “Umbrella” approaches

Rivers and Harbors Appropriation Act of 1899

  • Navigable Waters
  • Section 10
  • Constructing Structures Under Navigable Waters

CWA – Section 404

  • Federal Agencies Administering Section 404 Program
    • US Army Corps of Engineers (USACE)
    • US Environmental Protection Agency (USEPA)
  • Jurisdiction: Geographic Extent of Waters in the US
    • 33 CFR 328.3
    • Current Revisions – aka Navigable Waters Protection Rule
    • Territorial Seas and Traditional Navigable Waters
    • Tributaries
    • Lakes and Ponds
    • Adjacent Wetlands
    • Ditches
    • “Typical Year”
  • Non-Jurisdictional Categories
    • Groundwater
    • Ephemeral Features
    • Diffuse Stormwater Runoff
    • Ditches
    • Prior Converted Croplands
    • Artificially Irrigated Areas, Lakes, and Ponds
    • Water-Filled Depressions
    • Stormwater Control
    • Waste Treatment Systems
    • Potential Issues
    • Legal Challenges
  • What Does This Mean to You?  
  • Wetlands
    • Definitions
    • Tidal Waters and Non-Tidal Waters
    • Jurisdictional Determination

Section 404 Authorizations

  • General and Individual Permits
  • Exempt Activities
  • State Adoption
  • Excavation-Tulloch Rule
  • Regional General Permits (RGPs)
  • Programmatic General Permits (PGPs)

Endangered Species Act

  • Federal Agencies Administering ESA
    • US Fish & Wildlife Service (USFWS)
    • National Oceanic and Atmospheric Administration (NOAA)
  • What It Protects
    • Threatened Species
    • Endangered Species
  • Threatened and Endangered Species
    • Process for Listing
    • Listing Factors
    • Plants
  • Endangered vs. Threatened
    • Imminence of Extinction
    • Significant Portion of Its Range
    • 2019 Regulatory Amendments
    • 4(d) Rules
  • Critical Habitat Designation
    • Based on Scientific Information
    • Accounts for Economic Impacts
  • Recurring Review
    • Change In Listing Status
      • Up-listing
      • Down-listing
      • Delisting
    • Change in Identified Critical Habitat
  • Activities It Regulates – ESA Section 9 Prohibition
    • Prohibits “Take” of Listed Species
  • Section 7 Consultation Process
    • When Is It Required?
    • What Is Involved?
    • Jeopardy/Adverse Modification
    • Pitfalls
    • Benefits
  • Section 10 Incidental Take Permits and Habitat Conservation Plan
    • What Are They?
    • What Is Involved?
    • Pitfalls
    • Benefits
  • Penalties for Non-Compliance and Section 11 Citizen-Suit Provision
    • Civil and Criminal Penalties
    • Lawsuits and Injunctive Relief
    • Citizen-Suits
      • NOI
      • ESA vs. APA challenges
    • ESA Compliance
      • Identifying when ESA compliance may be a consideration
      • USFWS maintained species lists by county
      • Understanding habitat types used by listed species
      • Awareness of USFWS species profiles/guidelines for species that identify when project owners should coordinate with the USFWS

National Historic Preservation Act

  • Define the NHPA and Its Key Components
    • National Register of Historic Places (NRHP)
    • Advisory Council on Historic Preservation (ACHP)
    • State Historic Preservation Offices (SHPOs)
    • Tribal Historic Preservation Offices (THPOs)
    • Section 106
    • Section 110
    • Understand the Section 106 4-Step Process
  • Identify Actions That Trigger HP Review
  • Identify Potential Historic Properties
  • Identify actions That May Cause Adverse Effects
  • Describe the Purpose of A Memorandum of Agreement and Programmatic Agreement
  • State Historic Preservation Office and Their Regulations

Nationwide Permit 12

  • What It Is and What It Does
  • Where It’s Used
  • Special Considerations for Linear Projects
  • General Conditions
    • Endangered Species Act
    • National Historic Preservation Act
    • Pre-Construction Notification
  • Regional Conditions


9:00 a.m. – 12:00 p.m. Central Time

National Environmental Policy Act

  • NEPA History
  • NEPA Regulated Activities
    • Projects requiring federal action and NEPA review
    • Agencies that use NEPA reviews for planning and issuing permits
    • Kinds of projects
  • What are the requirements
    • Environmental Assessment (EA)
    • Finding of No Significant Impact (FONSI)
    • Environmental Impact Statement (EIS)
  • NEPA Reform and CEQ’s Proposed Regulations
    • What’s changed
    • Greenhouse Gas Analysis
    • Cumulative Effects
    • Current Status and Risk Management

CWA – Section 401

  • June 2020 – EPA Finalized “Clean Water Act Section 401 Certification Rule”
  • What it is and what it does
  • Beyond water quality
  • Kinds of projects that triggers it
  • Role of State Environmental Quality Act Law
  • Impact of denial of State Water Quality Certificate on projects

Coastal Zone Management Act

  • What it is and does
  • What’s included in a coastal zone
  • Finding that project is inconsistent with State’s Coastal Zone Management Act


Migratory Bird Treaty & Eagle Protection Acts


During this afternoon workshop, we will learn about the Bald and Golden Eagle Protection Act (BGEPA) and Migratory Bird Treaty Act (MBTA). The goal will be to understand what is prohibited under BGEPA and MBTA, how the US Fish and Wildlife Service (USFWS) administers these two laws, and what is in flux. Those in class will leave the workshop with an understanding of how to assess the risks under BGEPA and MBTA using examples across several industries.

Learning Outcomes 

  • Review how the BGEPA and MBTA function and how they may impact project development and operations
  • Discuss where the challenges lie when managing risk under these two statutes at your projects
  • Evaluate what changes are expected in the near term to both regulatory programs and how to keep track of these changes

Requirements for Successful Completion of Program 

Participants must log in and be in attendance for the entirety of the workshop to be eligible for continuing education credit. 

Instructional Methods

PowerPoint presentations and open discussion, along with real use cases.

Who Should Attend 

  • Environmental, health, and safety employees for electric utilities
  • Electrical utility project managers with projects revolving around environmental regulation


1:00 – 4:30 p.m. Central Time

Bald and Golden Eagle Protection Act

  • Overview of Statutory Protections and Enforcement Risks
  • Overview of Permitting Program
    • Incidental Take
    • Disturbance Permits
    • Nest Removal Permits
  • Practical Considerations for Those in the Wind, Solar, Electric and Water Infrastructure, Mining, Commercial, and Residential Sectors
    • Regulatory Provisions Applying Specifically to Wind
    • Mitigation Considerations, Costs, and Options
  • Update on Anticipated Regulatory Changes

Migratory Bird Treaty Act

  • Overview of Statutory Protections and Enforcement Considerations
  • History of Enforcement Trends
  • Overview of Current Regulatory Status, Current Circuit Court Status, and Legislative Status
  • Overview of Director’s Order
  • Status of USFWS Development of a Permit Program
  • Practical Considerations for Managing MBTA Enforcement Risk