Efficient Wetland Permitting
Like clockwork, the much-awaited onset of warmer weather in northern states brings the start of construction season. Contractors are actively digging and moving dirt, and in some cases, that activity impacts wetlands. Regardless of the season or locale, I have a few tips to help successfully identify and manage impacts to wetlands and other water bodies and how to obtain a subsequent wetland permit on construction projects.
To begin with, if there is a chance that wetlands may be affected, I recommend early communication with regulatory agencies. This includes the United States Army Corps of Engineers (USACE) who administer wetland permits nationally (Section 404 of the Clean Water Act), and, in some areas, state and local agencies who administer state wetland-protection statutes and local ordinances.
In many cases of development or construction, it is wise to engage a wetland professional to help identify and delineate wetlands. Wetland delineation is a technical process that evaluates vegetation, soils and hydrology to document positive indicators of wetlands, determine the location of the wetland/upland boundary and describe the distribution and extent of a wetland. This step is typically followed by requesting a jurisdictional determination from the USACE and relevant state agencies. The wetland delineation must be completed during the growing season when vegetation is living and soils are not frozen.
Federal law restricts dredge and fill activities in wetlands or water bodies. When development will encroach on a wetland, a USACE permit is required. Permitting can be a frustrating and time-consuming process if not managed properly. The permitting process can result in delays affecting project schedules and budgets. To facilitate efficient and successful wetland permitting, I recommend the following steps:
1. Identify the type of wetland permit needed
The USACE offers several different permits, and the exact permit needed depends on several factors such as location, type of activity proposed and magnitude of impacts to wetlands. State laws sometimes apply and may regulate fill, excavation, or drainage of wetlands. When local ordinances apply, they often define buffers around wetlands and regulate what actions are allowed within those buffers as well as within the actual wetland.
2. Determine if special studies are needed
In addition to a wetland delineation, other studies may be necessary for full regulatory compliance. Federal actions, such as when the USACE issues a wetland permit, must comply with the Endangered Species Act and the National Historic Preservation Act. This may require desktop or field evaluation for the presence of protected species, habitat, historic structures, or archaeological sites. In some circumstances, a detailed evaluation of wetland functions and values is needed to help define project impacts. Finally, some state and localities have regulations covering rare or unique ecosystems that may be associated with wetlands. In any of these circumstances, additional studies and approval may be needed before a wetland permit can be issued.
3. Determine if an Environmental Assessment (EA) or Environmental Impact Statement (EIS) are required
For complicated or large projects, state and federal environmental review statutes may apply and require a detailed evaluation of impacts. These impacts are not restricted to wetlands in an EA or EIS, but include a wide range of effects to physical, chemical, ecological and human environments. Most wetland permits are issued for relatively modest impacts and do not require the more extensive evaluation of an EA or EIS. However, it is best to know this before embarking on wetland permitting to avoid surprises.
4. Complete a sequencing and alternatives analysis
This step represents the most common avoidable mistake for wetland permitting for most developers. Sequencing refers to exploring ways to minimize and avoid wetland impacts during project planning. Some think that simply buying mitigation credits precludes the need for sequencing or otherwise considering alternatives. However, replacement mitigation is defined as the last step in sequencing, not the first step. Numerous wetland permit applications have been returned or rejected because the applicants did not demonstrate adequate efforts to avoid or minimize wetland impacts.
Site planning and design should first consider and document alternatives that avoid wetland impacts to the extent possible. This can include alternative sites, when possible, or alternative site layouts or project designs. If wetland impacts are unavoidable, the next step in sequencing is to minimize impacts. This can include actions such as adjusting the slope of berms to decrease the footprint of fill in a wetland or using construction mats for equipment operating in wetlands. The final step in sequencing is to create or purchase compensatory mitigation. This mitigation replaces the lost wetland at an off-site location, and the objective is to replace the same kind of wetland close to the site of the lost wetland to restore wetland functions and values to the area.
5. Submit a complete application
This should be obvious, but some projects experience unnecessary delay because attention to detail was lacking in the permit application. A complete wetland permit application may include several items including a signed permit application, wetland delineation report, detailed project description, maps and figures, quantified impacts, demonstration of sequencing and alternatives, an explanation of why wetland impacts are unavoidable and compensatory mitigation. If any part is missing, the application will be rejected or delayed until all information is submitted. Application instructions should be followed carefully, and information presented in the order it is requested in the application.
6. Allow time for application processing and review
In some circumstances, a regulatory agency may request a site visit before approving a wetland delineation and/or wetland permit application. The primary agency may also need to consult with other agencies or receive their input before approving an application. Finally, the agency must prepare a written permit for the administrative record and enumerate permit conditions that apply to the project. Again, the details vary according to the situation, but applicants should be aware of these time constraints when planning project schedules.
Once the permit is issued, the conditions should be carefully reviewed. All wetland permits have standard conditions included that prescribe Best Management Practices (BMPs) to minimize wetland impacts, preserve downstream water quality and restore temporary alterations. Sometimes, site-specific or project-specific conditions may apply that can affect construction techniques or schedules.
The steps outlined here are meant to optimize the chances for a smooth and efficient wetland permitting process free of surprises or unexpected delays. Every project is unique, so each may unfold differently, but these suggestions are based on our long experience in assisting clients and obtaining wetland permits. At all stages of development of a project that impacts wetlands, it may be advisable to engage a wetland professional who is familiar with delineation, mitigation and wetland permitting.