Wetland Regulations and Ecology Overview

Wetland Regulations: Permitting and Delineation

Course Information

• Course Name: Wetland Ecology and Management

• Course Codes: NATR 5250/6250

Key Terms and Concepts

• Section 404, CWA (Clean Water Act): A key regulation that governs the discharge of dredged or fill material into waters, including wetlands.

• Nationwide Permits: General permits covering multiple activities, allowing for streamlining of the permit process under specific conditions.

• Individual Permits: Tailored permits that require a more comprehensive evaluation of proposed impacts on wetlands.

• Mitigation: Actions taken to offset adverse environmental impacts caused by development. This can include wetland restoration, creation, enhancement, preservation, and in-lieu fees.

• Wetland Restoration, Creation, Enhancement, Preservation, and In-Lieu Fees:   - Restoration: Re-establishment of wetland functions where they have been degraded.   - Creation: Development of new wetlands in areas where they previously did not exist.   - Enhancement: Activities that improve existing wetlands' ecological values.   - Preservation: Protection of existing wetlands to prevent degradation.   - In-Lieu Fees: Payments made to a fund that is used to facilitate alternative mitigation projects.

• Mitigation Banking: A system where credits are developed from the preservation, restoration, or creation of wetlands which can be sold to offset impacts from development.

• On-site vs. Off-site Mitigation: On-site involves mitigation actions taken at the same location as the impact, while off-site occurs in a different location.

• 1987 COE Wetland Delineation Manual: A foundational document that includes guidance for identifying wetland boundaries.

• Wetland Delineation Criteria: Standards used to determine the boundaries of a wetland.

• **Prevalence Index ** (OBL, FACW, FAC):** A system of nomenclature for classifying plants based on their hydrophytic characteristics and their likelihood of occurrence in wetland environments.

• Hydric Soil Criteria vs. Indicators: Criteria are the specific characteristics that classify a soil as hydric, while indicators are features or evidence that suggest hydric properties may be present.

• Wetland Hydrology Indicators: Evidence indicating the presence of water or saturation within a wetland area.

Overview of Section 404 Wetland Permitting

Types of Permits

1. Letter of Permission: A simplified method for projects that have minimal impact.

2. Nationwide Permit: See specifics in the list below.

3. Individual Permit: Comprehensive assessment and public review process.

Nationwide Permits (2021) - Overview of Activities Covered

• 1. Aids to Navigation

• 2. Structures in Artificial Canals

• 3. Maintenance Activities

• 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Activities

• 5. Scientific Measurement Devices

• 6. Survey Activities

• 7. Outfall Structures and Associated Intake Structures

• 8. Oil and Gas Structures on the Outer Continental Shelf

• 9. Structures in Fleeting and Anchorage Areas

10. Mooring Buoys

11. Temporary Recreational Structures

12. Oil or Natural Gas Pipeline Activities

13. Bank Stabilization

14. Linear Transportation Projects

15. U.S. Coast Guard Approved Bridges

16. Return Water From Upland Contained Disposal Areas

17. Hydropower Projects

18. Minor Discharges

19. Minor Dredging

20. Response Operations for Oil or Hazardous Substances

21. Surface Coal Mining Activities

22. Removal of Vessels

23. Approved Categorical Exclusions

24. Indian Tribe or State Administered Section 404 Programs

25. Structural Discharges

26. Aquatic Habitat Restoration, Establishment, and Enhancement Activities

27. Modifications of Existing Marinas

28. Residential Developments

29. Moist Soil Management for Wildlife

30. Maintenance of Existing Flood Control Facilities

31. Completed Enforcement Actions

32. Temporary Construction, Access, and Dewatering

33. Cranberry Production Activities

34. Maintenance Dredging of Existing Basins

35. Boat Ramps

36. Emergency Watershed Protection and Rehabilitation

37. Cleanup of Hazardous and Toxic Waste

38. Commercial and Institutional Developments

39. Agricultural Activities

40. Reshaping Existing Drainage Ditches

41. Recreational Facilities

42. Stormwater Management Facilities

43. Mining Activities

44. Repair of Uplands Damaged by Discrete Events

45. Discharges in Ditches

46. Commercial Shellfish Mariculture Activities

47. Coal Remining Activities

48. Underground Coal Mining Activities

49. Land-Based Renewable Energy Generation Facilities

50. Water-Based Renewable Energy Generation Pilot Projects

51. Removal of Low-Head Dams

52. Living Shorelines

53. Seaweed Mariculture Activities

54. Finfish Mariculture Activities

55. Electric Utility Line and Telecommunications Activities

56. Utility Line Activities for Water and Other Substances

57. Water Reclamation and Reuse Facilities

Nationwide Permit General Conditions

1. Navigation

2. Aquatic Life Movements

3. Spawning Areas

4. Migratory Bird Breeding Areas

5. Shellfish Beds

6. Suitable Material

7. Water Supply Intakes

8. Adverse Effects from Impoundments

9. Management of Water Flows

10. Fills Within 100-Year Floodplains

11. Equipment

12. Soil Erosion and Sediment Controls

13. Removal of Temporary Fills

14. Proper Maintenance

15. Single and Complete Project

Individual Dredge and Fill Permit Application Process

Overview of the Steps

1. Application Receipt: COE (Corps of Engineers) receives application.

2. Acknowledgment: COE acknowledges receipt and begins processing the application.

3. Public Notice: A 30-day public notice period begins, soliciting comments from the public and relevant agencies (e.g., USNMF, USFWS, USEPA, state agencies).

4. Review Period: COE evaluates wetland impacts based on demonstrated avoidance, minimization, and compensation measures.

5. Request for Information: COE may request additional information or clarifications from the applicant.

6. Public Hearing: A public hearing may be requested by interested parties.

7. Decision: Application can be approved or denied. If approved, the applicant signs and provides necessary fees. If denied, the applicant may appeal the decision.

8. Permit Issuance: If approved, the permit is issued to the applicant.

Additional Considerations and Certifications in Section 404 Wetland Permitting

1. Section 401 Water Quality Certification: Evaluates the water quality impacts of the proposed project.

2. Endangered Species Consideration: Compliance with the Endangered Species Act to ensure protection of threatened species.

3. Cultural Resources Assessment: Assessment to protect cultural resources under the National Historic Preservation Act.

Mitigation Approaches and Types

• Restoration: Re-establishment of wetland functions where they are lost.

• Enhancement: Activities to increase the functions of existing wetlands, such as hydrologic improvements.

• Creation: Establishing new wetlands where none existed; challenging due to hydrology uncertainty.

• Preservation: Safeguarding existing wetlands in perpetuity.

• In-Lieu Fee Mitigation: Off-site financial contributions for wetland restoration; often occurs post-impact.

• On-Site Mitigation: Mitigation at the site of impact; typically more effective but can be challenging.

• Mitigation Banking: Third-party managed wetland credits for offsets; generally ensures broader, well-managed wetland conservation.

• In-Kind vs. Out-of-Kind Replacement:   - In-Kind Replacement: Replacement with similar type wetlands.   - Out-of-Kind Replacement: Replacement with different wetland types.

Mitigation and the Permitting Process

• The application for Individual Permit includes a ‘Mitigation Plan’ outlining:   - Mitigation goals and objectives   - Baseline information for wetland impacts   - Proposed mitigation sites with attributes like ecological, hydrologic information and historical land use assessments.

Wetland Delineation

Definition and Purpose

• Wetland Delineation: The process of identifying and mapping wetland boundaries for regulation, assessment, and inventory.

• Utilized by the Corps of Engineers under the CWA and FSA for regulatory responsibilities.

Criteria for Wetlands

1. Presence of hydrophytic vegetation.

2. Presence of hydric soils.

3. Evidence of hydrology.

1987 Corps of Engineers (COE) Wetland Delineation Manual

• Provides guidelines for wetland identification.

• Not a classification system, rather a method.

Hydrophytic Vegetation

• Defined as the sum total of macrophytic plant life that occurs in areas where the frequency of inundation or soil saturation leads to soil characteristics that influence plant species growth.

• Plant Indicator Status:   - OBL (Obligate Wetland Plants): >99% probability of occurrence in wetlands.
    - FACW (Facultative Wetland Plants): 67-99% probability of occurring in wetlands.
    - FAC (Facultative Plants): 33-67% probability of occurring in both wetlands and non-wetlands.   - FACU (Facultative Upland Plants): 1-33% probability in wetlands but >67% in non-wetlands.
    - UPL (Obligate Upland Plants): <1% probability in wetlands, commonly found in uplands.

Hydric Soil Indicators

• Hydric Soils: Soils characterized by saturation or flooding, leading to anaerobic conditions.

• Criteria vs. Indicators:
    - Criteria: Define hydric soils based on dominance of certain soil types or conditions.   - Indicators: Used to support delineation efforts through field observations.

• Examples of Hydric Soil Criteria:
    - Predominantly Histosols or Aquic soils, frequently ponded or flooded.   - Field indicators of hydric soils guide wetland studies and assessments.

Wetland Hydrology

• Wetland Hydrology Definition: All hydrological characteristics of periodically inundated areas or areas with saturated soils during the growing season.

• Field Indicators:   - Evidence of historical or current inundation.   - Signs of soil saturation in the field.

• Hydrology Achievement: Recognized when an area is inundated or saturated for at least 5% of the growing season under normal conditions.

Investigation Techniques for Wetland Characteristics:

• Visual Evidence: Observations of soil saturation or historical flooding.

• Physical Examination: Soil pit analysis for hydrology indicators.

Summary of Mitigation and Section 404 Processes

• Understanding the intricacies of wetland permitting, mitigation strategies, and delineation is critical for ecological management and compliance with federal regulations, ensuring the effective preservation and restoration of wetland functions.