Wetland Permitting

The presence of wetlands on a property can dramatically affect site design and development timelines. Wetlands are protected under a variety of governmental regulations including federal, state, and in many instances local regulations. Once a delineation has been conducted on a property and it has been determined that wetland is present on the site a permit must be obtained from each of the regulatory agencies having jurisdiction before the wetlands can be disturbed. State and local permitting procedures differ widely, but a detailed summary of the federal process is offered (here).

Wetland Permitting Procedure:

Wetlands are protected under a variety of governmental regulations including Federal, State, and in many instances local regulations. Once a delineation has been conducted on a property and it has been determined that wetland is present on the site a permit must be obtained from each of the regulatory agencies having jurisdiction before the wetlands can be disturbed.

Federal Wetland Permitting

The primary federal wetland protection legislation is the Water Pollution Control Act of 1972 better known as the “Clean Water Act”. This legislation established the authority of the federal government, through the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), to restrict land uses on private property that would negatively impact Waters of the United States. Section 404 of the act outlined restrictions to discharges of dredged material to Wetlands and Other Waters. Shortly after its passage, the EPA implemented rules establishing a wetland dredge and fill permitting process that is managed by the Corps. Any activity that disturbs the surface within a jurisdictional wetland is subject to review and authorization under the permitting regulations. There are several mechanisms whereby the Corps can authorize impacts to wetlands, all of which are subject to “sequential review.”

1. Sequential Review
   Avoidance: First a demonstration must be made (to the Corps’ satisfaction) that no practical upland alternative exists to the proposed impact. If there is a demonstrably practicable alternative that would avoid impacting wetland the applicant would be required to redesign the project to avoid the wetland impact and no permit would be granted.
   Minimization: Second, if the avoidance analysis determines that impact to wetlands cannot be avoided, through analysis of the site plan is undertaken to identify any practicable means of reducing the impact to wetlands. Minimization measures often involve manipulating infrastructure design and orientation to accomplish the project’s objectives while protecting on-site wetlands.
   Compensatory Mitigation: Finally, if the Corps is satisfied that the applicant has successfully demonstrated avoidance and minimization yet proposed wetland impacts remain, the applicant must compensate for the loss of ecological function resulting from the project. There are numerous ways of satisfying the compensatory mitigation requirements but all begin with a quantification of the ecological function provided by the impacted wetland using a Wetland Functional Assessment Method to score the wetland. Once the impact is scored the same method is applied to determine the adequacy of the proposed compensatory mitigation to offset those impacts.
2. Individual Permit
   With a few exceptions described below, most real estate development that involves impacts to more than 0.10-acre of wetland will require a “404 permit” known as an individual permit. The terms of authorization for wetland impact require that the applicant make several demonstrations regarding their proposed land use referred to as the Sequential Review:
   
   1. Pre-application:
      The greatest success in permitting is facilitated by inclusion of an ecological consultant on the design team. By cooperating with the architects, planners, and engineers, the ecological consultant can guide the project into conformance with the sequential review process. In certain circumstances permitting strategy can be enhanced by meeting with the regulatory agencies prior to submittal of a permit application to discuss specific technical issues.
   2. Application:
      The submission of project information to communicate conformance of the project to the 404 permit requirements and requesting authorization to proceed. More so that many other permit processes, IP applications have a very precise format. Although seemingly intuitive, there are many aspects of the application that require expert assistance including content editing and graphic formatting. The application must include: the application form, narrative descriptions of the sequential review process, biological and ecological information for the subject property, a detailed mitigation proposal, and specifically formatted site plans.
   3. Requests for Additional Information:
      Upon receipt of the application package, the Corps assigns a project manager who reviews the submitted materials. Invariably the project manager will require clarification on certain matters and generate a request for additional information (RAI). The applicant must then respond with the requested materials. Most often the RAI involves drawing details or clarification of proposed activities.
   4. Public Notice:
      The Clean Water Act provides for public notification prior to authorization of wetland impact. Once the application has been deemed complete, the project manager produces a notice describing the proposed project which is published on the internet, provided to adjacent property owners and specific resource agencies (such as the Fish and Wildlife Service and the Marine Fisheries Service). The notice solicits comments which must be considered in the Corps decision to issue or deny the permit. An opportunity is provided to the applicant to rebut significant comments.
      Negotiation Period: Having reviewed the applicant-submitted materials and public comments the Corps communicates specific concerns to the applicant, providing opportunity for project modification before the agency decision is reached.
   5. Decision Document:
      In accordance with federal environmental regulations (the National Environmental Policy Act) the corps must document the information considered in its decision to authorize (or deny) impacts to wetlands. The decision document is the final pre-issuance paperwork that is filed in the administrative record.
   6. Permit Instrument:
      If the decision document supports issuance, a permit is drafted that details the conditions under which authorization to impact wetlands is granted. The conditions, both general and specific, describe exactly what must be done by the applicant to comply with the Clean Water Act.
   7. Permit Implementation:
      Many permit conditions include actions that must be taken before an applicant can begin with the permitted activity. Such conditions include recordation of various legal documents, providing notice of commencement, using various Best Management Practices on the construction site, etc. Only after review of the permit instrument and implementation of the pre-construction requirements can project construction begin. After construction there are often monitoring and reporting requirements that may extend years beyond initial construction.
3. Nationwide Permit (NWP)
   Many activities are so common and so often authorized that the Corps has undertaken to write permits for those activities for use nationwide. Such NWP’s have undergone sequential review, public notice and decision documentation and exist “on the books”. If a proposed activity (road construction, for example) can be shown to comply with an existing NWP, there is no reason to undergo the more exhaustive Individual Permit process. Presently there are presently about 50 NWP covering a variety of common activities.
   
   1. Pre-Construction Notification (PCN):
      Unlike IPs, there is no application for permit issuance, because the permit already exists. Rather, there is a procedure for demonstrating that the proposed activity complies with the conditions of the NWP called Pre Construction Notification (PCN). However, like the IP process, the PCN submittal is a very precise document that benefits from the expertise of an ecological consultant. Unlike the IP process, there is a specified timeframe (45 calendar days) within which the Corps must respond to the applicant. Failure to respond within the notification timeframe represents tacit authorization for the noticed activity.
   2. NWP Verification:
      If after review of the Pre Construction Notification document the Corps determines that the proposed activity does comply with the conditions of an existing NWP, a verification letter will be supplied to the applicant authorizing project commencement.
4. Letter of Permission (LOP)
   Upon review of a permit application, the Corps project manager has a means other than an individual permit for authorizing certain, low impact, activities. The terms of use for letters of permission differ between Corps districts but, essentially, it is a mechanism through abbreviated review procedures, specific low-impact activities can receive expedited authorization.

Post-Permitting and Implementation

Biome Consulting Group is particularly adept at navigating the complexities of the after-permit process. All environmental permits contain specific conditions with which a permittee must comply. Specific conditions often include notices, document recordation, and specific construction related Best Management Practices.

Legal Notices and Notifications

At a minimum, an environment will require a pre-construction notification to the regulatory agency. Failure to provide this, and other documentary requirements, can result in costly delays.

Conservation Easement Boundaries

Permits for projects involving wetland impact frequently require legal protections for the wetlands remaining on the project site. These protections are usually conveyed via a conservation easement. Most conservation easements are required to be marked in the field with concrete monuments and/or signs which identify the area and include permit numbers and agency phone numbers. After the permits have been issued, Biome Consulting Group can provide your surveyor with markers that meet these requirements or we can assist the surveyor in the field with the placement of the markers at the appropriate locations and intervals.

Best Management Practice Implementation

To insure permit compliance, it is extremely important that equipment operators and the project manager know and understand their limitations and requirements as outlined in the project’s environmental permits. The permittee, not the contractor, is responsible for compliance with permit conditions. We can meet with your construction team and/or contractor to familiarize them with the construction related BMP’s that are part of EVERY permit.