Permitting process for wetland and stream impacts

Vincent E. Messerly, P.E.

President Ohio Wetlands Foundation Lancaster, Ohio

he objective of the Clean Water Act (CWA) is to restore and maintain the chemical, physical and biological integrity of the nation’s waters. As one tool provided to achieve this goal, the CWA prohibits the discharge of dredged or fill material into “waters of the United States” unless the discharge is authorized by the United States Army Corps of Engineers (USACE) under CWA Section 404. In general, in order to obtain a Section 404 permit the adverse impacts to wetlands, streams, and other aquatic resources resulting from the discharge must be avoided where practicable and minimized. For unavoidable impacts, compensatory mitigation is required to replace the loss of wetland and aquatic resource functions. Compensatory mitigation refers to the restoration, establishment, enhancement, or in certain circumstances preservation of wetlands, streams, or other aquatic resources.

Compensatory mitigation requirements must be commensurate with the amount and type of impact that is associated with the permitted discharge. Permit applicants are responsible for proposing an appropriate compensatory mitigation option to offset unavoidable impacts. Compensatory mitigation options include the purchase of credits from an approved mitigation bank or inlieu fee program or development of a mitigation project located either on the project site or at an offsite location (commonly referred to as a permittee-responsible mitigation). The Corps regulations (see 33 CFR Part 332) establish a regulatory hierarchy for compensatory mitigation. The hierarchy is: use of an approved mitigation bank that has the resource type and credits available; use of an approved in-lieu fee program that has the resource type and credits available; a permittee responsible mitigation project onsite; a permittee responsible mitigation project offsite.

Prior to considering wetland mitigation, the permittee must demonstrate that it has considered practicable alternatives to avoid and minimize wetland and stream impacts. If impacts are unavoidable, the permittee is required to demonstrate that appropriate compensatory mitigation will be completed which will fully replace the impacted resource. When the impact is necessary to fulfilling the basic purpose of the project, the applicant should consider the following steps to plan, implement, and manage the wetland and/or stream mitigation project:

• Select a location based on watershed needs and how specific wetland/stream restoration and protection projects can be best addressed and which will not be adversely affected by surrounding land uses; • Establish meaningful and measurable performance standards for the wetland/stream mitigation so that project success can be evaluated; • Establish a realistic and measurable monitoring protocol and standards to document that

The Trumbull Creek Wetlands Mitigation Bank, near Rock Creek, Ohio, was established in 2002 by Ohio Wetlands Foundation. The project restored approximately 250 acres of wetlands on lands that were previously drained for agricultural purposes.

the mitigation site will, over time, achieve the required performance standards; and • Clearly specify the components of a complete mitigation project.

Starting the process

Before applying for a permit, an applicant must identify the location of all water resources on the project site and establish a plan to provide mitigation for impacted water resources. Many project owners/ developers don’t realize they have wetlands or other water resources on their land. It is crucial to be familiar with the land to avoid unauthorized impacts to water resources. Project owners will be held responsible for unauthorized impacts, whether or not they knew the project site contained water resources.

Early in the development stages of a project, a reputable ecological consultant should be hired to “delineate” wetlands and streams on the project. After the wetland boundaries and location of other water resources have been mapped and confirmed by USACE, applicants should work with their civil engineer to locate structures, utilities, and other infrastructure on the site and to consider alternative designs that may avoid impacts to water resources, where practicable. If avoidance is not practicable, the design of the project should attempt to minimize the impacts to wetlands and streams. Lastly, it will be necessary to consider available mitigation options and to propose a mitigation plan with the permit application (typically prepared by the ecological consultant). If a mitigation bank or in-lieu project is not available in the area of the project it will be necessary to develop a permittee responsible mitigation project. This can take considerable effort and time.

Federal and state permitting

In many instances, applicants must comply with both federal and state permitting requirements. Typically, the USACE asserts regulatory jurisdiction over most water resources. However, two states, New Jersey and Michigan, manage state-run Section 404 programs. An additional set of requirements has been established for truly navigable waterways, i.e., those waterways that are or may be used for shipping or recreational boating, under Section 10 of the Rivers and Harbors Act. Impacts to these waters, commonly referred to as Section 10 Waters, are regulated by USACE. In addition, most states maintain an active Section 401 Certification program, which may impose additional and sometimes contradictory requirements than federal rules. An applicant typically submits a permit application to the USACE district office in which the project is located. Permit applications may also be required to be submitted to the state agency that manages the Section 401 Certification program.

The wetland mitigation credit generated by the Trumbull Creek Wetlands Mitigation Bank in advance of permitted impacts is sold to applicants that need to provide compensatory mitigation.

The restored wetlands at the Trumbull Creek Wetlands Mitigation Bank provide valuable wetlands habitat for a wide array of plants and animals and provide important stormwater storage while helping to improve water quality in the Grand River watershed.

Permit applications must be submitted with documentation of the location of water resources located on the project site, typically in the form of a delineation report including maps and data collected from the site, and an analysis of the value of the water resources. An applicant must identify the impacts to water resources and develop a preferred mitigation plan. Additional documentation and justification for the purpose of the impacts to the water resources must be provided to the regulatory agencies. This typically includes documentation of the construction plan and analysis of alternative site development plans, how many cubic yards of soil will be added to the area, and an analysis of alternative sites where the project could be practicably located.

The regulatory agencies could request changes to the construction plans (such as reducing the number of parking spaces in a parking lot or shifting the alignment of a utility line) or the development of additional mitigation. The process of negotiating development alternatives and mitigation requirements may take a year or longer. It is important to have a consultant or attorney familiar with the relevant USACE District and the state Section 401 Certification agency and their unique requirements and procedures to facilitate timely permit issuance and minimize unnecessary costs and uncertainty.

Expedited permit issuance may be available by using a general permit if impacts to wetlands are less than a half-acre and stream impacts are less than 300 feet. Federal rules provide a 45-day review period for USACE to complete their review of general permit application. General permits are often referred to as Nationwide Permits or NWPs. There are many different types of NWPs and they are specific to the type of activity being completed (e.g., residential development, linear transportation projects, utility construction, etc.).

An individual permit is needed for impacts that exceed the thresholds for general permits. An individual permit typically requires a minimum of six months to obtain. Coordination with other state and federal agencies (US Fish and Wildlife Service and state historic preservation agencies) often lasts more than a year. The presence of threatened or endangered species or significant cultural and/or historical resources may play a role in the permitting process. In certain situations, it may be necessary to wait until a certain time of the year to collect additional data from the site, prolonging the permitting process.

The individual permit process also requires a public notice and comment period. The applicant is required to respond to the issues raised by commenting agencies and the public. As mentioned previously, it is highly recommended that the applicant retain an experienced consultant to help navigate the process and to coordinate with USACE, especially when an individual permit application will be needed.

Once all comments and concerns are addressed, the applicant will be issued a permit that defines the authorized impacts to water resources and identifies the required mitigation. The permit may also contain conditions that restrict construction activity to certain times of the year to reduce conflicts with endangered or threatened species. The permit may also include restrictions that prohibit disturbance on portions of the site due to the presence of important historical or cultural resources.

The process of permitting and mitigating impacts to water resources is long and sometimes complicated. It is important for applicants to carefully consider potential permitting requirements when selecting a site and to allow for adequate time for permitting. Using an experienced consultant that is familiar with the local permitting agencies and one that is skilled in determining the extent of water resources on a project site and developing mitigation plans can substantially reduce uncertainty and minimize unnecessary delays.

Vincent E. Messerly can be reached at (740) 654-4016 or vmesserly@ ohiowetlands.org.

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