WETLAND REGULATORY COMPLIANCE
Wetlands are defined as "Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." Inherent in this definition is the term “normal circumstances.” The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) are charged with the regulation of “waters of the United States” under the Federal Water Pollution Control Act of 1972; modified to the Clean Water Act (CWA) in 1977, as defined in 33 CFR 328.3. Wetlands are regulated pursuant to Section 404 of the CWA in part because of their ability to filter and cleanse pollutants and sediments from stormwater before they enter other receiving waters. Additionally, Section 10 of the Rivers and Harbors Act of 1899 regulates activities such as dredge and fill and construction within navigable waters of the United States. The USACE generally defines navigable waters of the United States as “Those waters subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” Lastly, in addition to federal regulations, activities in wetlands may fall under additional state and local regulations.
THE PROCESS
Preliminary Identification
For projects that may have the potential to impact wetlands or other jurisdictional waters, particularly large scale capital intensive projects, it is of critical importance to identify jurisdictional features early in the project planning phase. Integrating preliminary wetland identification early on can help establish documentation regarding alternatives analysis and impact avoidance and minimization as required under Section 404 (b) (1). Furthermore, initial investigations can significantly reduce cost overruns associated with project redesigns resulting from unidentified wetland constraints. Typically, a preliminary wetland assessment involves reviews of desktop resources such as National Wetland Inventory (NWI) data, color and infrared aerial imagery, soil surveys and other online sources. Depending upon the scope of the project some onsite reconnaissance may be employed to more accurately characterize the extent of the resources present.
Wetland Delineation, Verification and Jurisdictional Determination
Once a project footprint or alignment has been established, more intensive investigations must be performed to accurately locate the limits of all wetlands within a proposed project area. These intensive investigations involve performing a wetland delineation in accordance with the USACE 1987 Wetland Delineation Manual and relevant regional supplements, flagging and GPS location the wetland boundary, and preparing a wetland delineation report and supporting maps that detail the results of the field investigations. This documentation is required to be submitted to the relevant USACE district compliance office for review and verification. Additionally, the applicant may choose to contest USACE jurisdiction, a process that requires additional investigations, submittals and EPA concurrence. Depending on the complexity of the proposed project, the whole process from initial field work through final jurisdictional determination can take several months to a year or more to complete.
Wetland Permits
Once it has been determined that jurisdictional resources will be impacted, it will be necessary to obtain regulatory authorization in the form of permits. With respect to USACE jurisdictional wetlands, a Department of the Army Permit will be required prior to the initiation of construction activities. These permits fall into two basic categories; General Permits (Regional or Nationwide) and Individual Permits. Nationwide and Regional Permits are standing authorizations where impact thresholds and other preconditions have been established such that a project may receive authorization under the appropriate permit provided all impact thresholds and preconditions have been met. Impact thresholds are limited to small areas of wetlands. The processing time for project authorization under a General Permit is generally one to three months. In contrast to General Permits, Individual Permits require comprehensive review under Section 404 and are subject to intensive review, negotiation and interagency concurrence as applicable. A separate Section 401 Water Quality Certification is required from the state in which the project occurs. Depending upon the significance of the proposed impacts, the USACE may be required to prepare a NEPA document (Environmental Assessment or Environmental Impact Statement) at the applicant’s expense. The time required to process an individual permit can range between 18 and 24 months, and often longer if the NEPA process is triggered. In addition to Department of the Army Permits, states and local governments may have their own regulatory programs that further regulate wetlands. Permitting requirements for such agencies must also be satisfied as necessary.