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What Are Wetlands
Section 10 of the Rivers and Harbors Act of 1899 regulates all development activities in “navigable” waters of the United States. Navigable waters refer to historical or present interstate commerce transportability, and include oceans, bays, major rivers, and the Great Lakes. Regulated activities include dredging, filling, structures, and any other permanent or semi-permanent modification that may affect navigation.
Laws and Regulations
Section 404 of the Clean Water Act of 1972 regulates the placement of dredged or fill material in all “waters of the United States,” including wetlands, surface tributaries, ponds, and reservoirs. The term “fill” has been given a rather broad definition to include structural support materials (e.g., rock, concrete, gabions, dirt, etc.). Mechanical land clearing in jurisdictional areas has been determined to result in incidental fill and is thus regulated.
Who Is Involved In The Regulation?
The US Army Corps of Engineers (USACE) administers the permit program for both Acts under a combined process. The US Environmental Protection Agency (EPA) has ultimate authority and permit (veto) power for Section 404 of the Clean Water Act, but invokes that authority only under certain circumstances. Furthermore, various federal, state, and local agencies are also involved in the permit process in a review and comment capacity.
What Will I Need To Begin?
The first step in the regulatory process is a determination of the presence or absence of any areas subject to jurisdiction under Section 404 or Section 10. This process usually involves an analysis of various maps, aerial photographs, soils information, and a ground reconnaissance to identify areas subject to jurisdiction. For the identification of wetlands, specific technical criteria identified in the Corps of Engineers Wetland Delineation Manual (1987) and various regional supplements are assessed. If jurisdictional areas are identified, a detailed delineation may be required that involves extensive technical data acquisition and instrument survey location of jurisdictional boundaries. The proposed project is then overlain on the delineation, and impacts to jurisdictional areas are assessed and quantified.
If jurisdictional areas will be affected, a permit must be obtained from the USACE. There are two types of permits issued:
1. General Permit (Nationwide or Regional) – Applicable to small-scale fill activities that have been predetermined by the USACE to result in minimal wetland impacts. General permits entail an abbreviated review, typically requiring 1 to 3 months to process.
2. Individual Permits – Applicable to larger Section 404 activities that involve impacts to extensive or exceptionally high-value wetlands, and many Section 10 actions. Individual Permits (IPs) involve significantly more agency and public review and processing procedures. IPs typically require 6 to 24 months to process depending on the complexity of the action and whether or not an Environmental Impact Statement is required by the USACE.
Wetland Mitigation and Banking
As a result of an Executive Order from the President of the United States, the USACE and the EPA reached an interagency agreement that mandated “NO NET LOSS” of wetlands nationwide for the USACE permit program. This agreement mandates a significant reduction in wetland loss by avoidance, minimization, and mitigation (i.e., creation or enhancement of wetlands) to become part of nearly every USACE permit action to compensate for the unavoidable loss of wetlands across the nation. Mitigation may include physical creation of wetlands from low value upland areas or may include enhancement or conservation of other existing wetlands. Generally, a lower mitigation ratio is required for actual wetland creation than for enhancement or conservation of existing wetlands. Compensatory mitigation is now dictated by the 2008 Compensatory Mitigation Rule (33 CFR 325 and 332). The rule establishes a general hierarchy of preference for use of mitigation banks, in-lieu fee programs, and permittee-responsible mitigation in that order.
Mitigation Banking Concept
The concept of mitigation banking is intended to provide a large-scale mitigation program that is much less expensive on a unit basis than are smaller, individual mitigation programs. Another important benefit to the concept is that the mitigation bank is physically in place and the value of the unit credits has been established and accepted by the regulatory agencies, resulting in reduced permit negotiation time. Mitigation costs are also better defined and not subject to land cost fluctuations or construction overruns. A large, well-designed and managed wetland area is also more ecologically valuable than numerous, small wetland areas created for individual mitigation requirements.
A mitigation bank is designed to establish wetland credits that can be drawn upon over time, much like an escrow account at a financial institution. In the case of a financial escrow account, money is deposited in the account in advance, then draws are made on the account over time as financial resources are needed. The escrow account is managed by a financial institution that keeps track of the draws and balance. Fundamentally, a wetland mitigation bank operates in much the same way. Wetlands are created, enhanced, or conserved in advance, thus establishing mitigation credits. As development projects in the planning region require mitigation for wetland impacts, credits are drawn from the mitigation bank. A management entity is established to meter out the credits and keep an accounting of the draws and balance. The primary difference between a financial escrow account and a wetlands mitigation bank is that wetlands do not necessarily have a predetermined value and the expenditure of wetlands (i.e., impacts) is regulated by federal law. Therefore, a mitigation bank requires considerable planning, design, and regulatory review and approval prior to its establishment in order that values can be ascribed to its various wetlands and to ensure that the credit system will be accepted by the regulatory agencies.
Mitigation banking procedures are defined in the 2008 Compensatory Mitigation Rule (33 CFR 325 and 332).
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