Honor thy wetland commitment
What does a wetland look like? It depends. A wetland can be a salt marsh on the coast, smelling of sea air and sulfur. Or it can be the Okefenokee Swamp with trees growing out of the water and alligators lurking in the shadows. But the wetlands with which you are most likely to deal are low places in a field or a park-like woodland near a creek. A wetland, in fact, often is dry in summer.
Two published data sources can help you determine whether wetlands might be on your site. One is the Soil Conservation Service county soil survey. The other is the National Wetland Inventory map series.
The Soil Conservation Service county soil survey is available from your local Natural Resource Conservation Service (NRCS) office. Once you've examined the maps and found the soil types on your site, call the NRCS for a list of hydric soils. Where you find hydric soils, you'll likely find wetlands.
ä The National Wetland Inventory (NWI) map series is prepared by the U.S. Fish and Wildlife Service (USFWS). These maps are based on U.S. Geologic Survey maps. You can get the series from your state department of natural resources. (You also can call 1-800-USA-MAPS and ask for the NWI map of the appropriate U.S. Geological Survey-USGS-quad-sheet name. You also can use the internet to locate the USGS homepage at www.usgs.gov. Look for "USGS products," and you can find the map sales distributor for any state. Each state has a map book from which you can find the quad sheet you need.) The NWI map will give you more information than you need about different varieties of wetlands. Focus on whether any wetland types are present on your site. Note their location and whether your plans call for clearing, filling, draining or excavating those areas.
Although these data sources are useful for planning purposes, regulatory agencies don't recognize them as jurisdictional wetland boundaries. If you plan to work in or adjacent to wetland areas, hire an experienced environmental consultant to flag the wetland boundaries in the field. (See boxed information, "How to select a wetland consultant," page 17.) To meet federal requirements, the consultant fills out specific data forms and sends them-with a preliminary wetland map-to the local U.S. Army Corps of Engineers (COE) office. The COE usually visits the site to verify the boundaries. You then may need to survey the wetland boundaries to calculate the total acres you want to impact. Next, the COE writes a letter documenting the wetland limits. But, keep in mind, this verification letter is not a permit.
What's this about a permit? Section 404 of the federal Clean Water Act protects U.S. wetlands and waters. The COE enforces these federal regulations. Plus, in some states, the state environmental protection division imposes additional restrictions through the 401 water-quality certification. A few states-such as Florida-define wetlands slightly differently compared to federal regulations. Thus, your site may need two different boundary delineations. Call your local COE district office to find out whether your state has wetland regulations in addition to federal requirements. Specific regulations in the Chesapeake Bay and Coastal Zone Management areas may have wetland protection requirements that go beyond the federal.
Notice that Section 404 also protects "waters of the United States." Thus, if you plan to relocate a little stream or culvert, that impacted acreage will count toward federal wetland permitting. In some states, in fact, you need a special permit. For example, in Tennessee, you must apply for an Aquatic Resource Alteration Permit (ARAP) before modifying a stream, no matter how small or intermittent its flow. Only a drainage that a state designates as "stormwater conveyance" is exempt. Some states have similar regulations or set-back restrictions prohibiting landowners from clearing vegetation next to the stream bank.
Not all wetland permits are created equal Having mentioned that you sometimes need other regional or state permits before altering waters and wetlands, let's look at the federal permitting process, which applies everywhere. Suppose that, for a golf course's construction, you want to box-culvert a section of stream to build a road over it. Perhaps a small spring is seeping out of a hillside you need to grade a bit. And suppose that a low spot full of cattails would be a great place to excavate an irrigation pond. Using this scenario, we can explore the two distinct permit types: individual and nationwide.
The objective of individual permits (IPs) The most comprehensive permit you can face is the Section 404 individual permit (IP). It applies when the site's proposed activity doesn't meet the specific requirements of any of the 39 nationwide permits (NWP). (These are defined in Appendix B of 33 CFR Part 330 of the Clean Water Act, listed in the Federal Register, Vol. 61, No. 240, Dec. 13, 1996.) NWPs are basically general permits for specific actions determined to have minimal adverse impacts on waters and wetlands. But the IP is reserved for projects presumably having greater than minimal impacts. In the previous example, suppose your project's total wetland impacts came to 5 acres. The COE district engineer would require an IP because impacts are greater than 3 acres. He or she also has discretionary authority to call for an IP when the project is controversial or where impacts are potentially "significant."
Preparing and processing an IP application takes time-3 months to a year, depending on the issues-and may require more agency interaction. Nevertheless, it can be done. Hiring a reputable consultant will save you time and, therefore, money. Your IP application will: * Document your project's need * Discuss the alternative sites or configurations you've considered to avoid wetland impacts * Describe any project modifications you've made to minimize wetland impacts * Document the unavoidable impacts (such as the number of acres of wetland and wetland-habitat quality) * Discuss potential mitigation to offset impacts.
The COE then prepares a synopsis of your application and mails it to the interested public, including adjacent landowners, for a 30-day comment period. You can write responses to the comments. Then, the COE district engineer makes a decision on the permit.
Now for nationwide permits Nationwide permits are less complicated than IPs. In our example, you could receive approval for the road crossing-under NWP14-if you limited the fill material to one-third acre of wetland or 200 linear feet of stream. If no wetlands were associated with the road crossing, you wouldn't need to contact the COE. But if some wetland fill is necessary (within the one-third-acre limit), you'll need a wetland delineation. You then must submit a pre-construction notification to the COE stating that your project meets the NWP14 criteria. If you don't hear from the COE within 30 days from when it says your permit-request materials are complete, then you are approved to proceed.
The most commonly used-and frequently misunderstood-COE permit is NWP26. Note that this permit has been significantly changed from the 1992 version. (The new NWPs went into effect Feb. 11, 1997.) This NWP allows you to add fill material in "headwaters" and "isolated waters" as long as the impacts are no more than 3 acres of wetland or 500 linear feet of stream bed. Headwaters refers to streams where the average annual flow is less than 5 cubic feet per second. (To put this in perspective, you can generally jump across a stream of this size.) Isolated waters include our example's spring, seeping out of the hillside. Or it could be a small groundwater flow-of less than 5 cubic feet per second-that's feeding our cattail marsh. However, if that groundwater flow is located within the 100-year flood plain of a larger stream or river (that is, a below-the-headwaters flow), authorities likely will consider it ineligible for application of NWP26.
If the permit requirements for a NWP26 apply to your site, and if fill is less than one-third acre, you may proceed without consulting the COE. When the work is done, however, you must file a report to the COE within 30 days of completion stating your name, work location, the project, type and acreage of impacts to waters and wetlands. This is for impacts of less than one-third acre. If the proposed area of fill is more than one-third acre, but less than 3, you must delineate the wetlands; you must show areas of proposed impact and notify the COE. When using more than one NWP on a single project, you must submit a pre-construction notification to the COE even if each NWP used alone would not have required notification. Also note that when an NWP26 is combined with other NWPs on a single project, the total acreage of impact cannot exceed the 3-acre limit.
So, as explained, you have two kinds of Section 404 or wetland permits: the IP and NWPs. You even can mix and match the two. In our much-belabored example, you could use the NWP14 for the road crossing, you could apply NWP26 to the hillside-seep wetland, and you can use an IP for the cattail marsh adjacent to a larger stream or river.
But wait-there's more! Listed after nationwide permits in the Federal Register is an inventory of permit conditions that apply even if your impacts are so small that you're not required to notify the COE. Among other items, the list includes the need to use appropriate erosion and siltation controls. This is because if sediment washes into an adjacent wetland-however inadvertently-authorities could charge you with filling without a permit.
Two other important conditions apply that you must remember: compliance with the Endangered Species Act and the National Historic Preservation Act. At a minimum, contact the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (if your site is in a coastal area). Give the appropriate agency a map showing your project site. Ask if any federally listed endangered or threatened species-or those eligible for listing-exist on your site. If the existence of such species is likely, you may need a biologist or botanist to survey your site. Don't forget about protected fish or shellfish that could be found in streams on your site.
Finally, contact your State Historic Preservation Office (SHPO) for information on known historic properties listed, or eligible for listing, on the National Register of Historic Places. Previously unknown but potentially eligible sites include a family graveyard where the headstones have been stolen or just overgrown with vegetation. This sort of site may only become known when you begin clearing or grading. If so, you must stop all work until you notify the SHPO and obtain additional information. Note that while the wetland permit only deals with impacts to waters and wetlands, the permit conditions apply to upland areas, also. Thus, with a golf-course development, for example, the permit conditions could impact an entire golf-course/residential development. Again, different COE districts interpret the reach of these conditions a little differently.
In the recently revised NWPs, the government issued two new conditions. One requires submittal of a compliance certificate once you've completed your project. This certification must confirm that you fulfilled permit conditions and implemented mitigation if you were required to do so. The second new condition is that you cannot use the same NWP more than once on a single project. For example, you could not use the road-crossing permit (NWP14) twice on your project, but you could use one NWP14 and one for utility line backfill or bedding (NWP12).
Why should I know this stuff? Perhaps, long ago, evil developers deliberately thumbed their nose at the law and filled in acres of pristine wetland to construct golf courses. But, really, that has not been my experience. More often, wetland violations result from an incorrect understanding of regulatory requirements. As an example, I am familiar with construction work on one 3,500-acre mixed residential/office park/recreational development that began in the mid-1980s. In 1987, the developer dammed a small stream to create a 190-acre lake. In 1991, the U.S. Environmental Protection Agency (EPA) accused the developer of illegally filling 35 acres of wetland. The fine: $25,000 per day per violation for the period 1987 to 1991 and $10,000 per day for violations before 1987. The total fine: $180 million. The final settlement was for much less, but the EPA made its point.
The developer did not set out to break the law, and the acreage of impact may have been much less than 35. But it is hard to prove anything once construction is complete. So it's best to be careful before you begin. Authorities used to interpret the use of heavy equipment to clear vegetation in a wetland as placing unauthorized fill there. In a recent court case (Jan. 23, 1997), the ability of the COE to regulate land-clearing and excavation was declared invalid. However, this decision will be appealed, so it is best to check before clearing. Keep abreast of changes in the regulations so you will know the kinds of permits that apply to make the process as simple as possible. Comply with permit conditions.
Wetlands are an asset The contrast of a developed vista against the chartreuse of a Florida cypress stand, the vivid fall colors of a northern red-maple swamp or the calm, deep green and brown of a tall-grass marsh enhances any landscape. Use the wetlands-weave your fairways or residential areas among the natural systems-and you, the regulators and the public all will be grateful.
Dr. Sue A. McCuskey is an environmental scientist with Post, Buckley, Schuh & Jernigan Inc., an engineering and consulting firm in Atlanta.
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