Before You Begin

Before you begin you project, turn to Edmisten to help with Wetland Impact Permitting, Stormwater Permitting, Imperiled Species Permitting, Cultural Resource Permitting and other issues you may face.

Wetland Impact Permitting:

Wetlands are protected under a variety of governmental regulations including Federal, State, and in many instances local regulations. Once a delineation has been conducted on a property and it has been determined that wetland is present on the site a permit must be obtained from each of the regulatory agencies having jurisdiction before the wetlands can be disturbed.

Federal

The primary federal wetland protection legislation is the Water Pollution Control Act of 1972 better know as the “Clean Water Act”. This legislation established the authority of the federal government, through the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), to restrict land uses on private property that would negatively impact Waters of the United States. Section 404 of the act outlined restrictions to discharges of dredged material to Wetlands and Other Waters. Shortly after its passage, the EPA implemented rules establishing a wetland dredge and fill permitting process that is managed by the Corps. Any activity that disturbs the surface within a jurisdictional wetland is subject to review and authorization under the permitting regulations. There are several mechanisms whereby the Corps can authorize impacts to wetlands:

Individual Permit

With a few exceptions described below, most real estate development that involves impacts to more than 0.10-acre of wetland will require a “404 permit” known as an individual permit. The terms of authorization for wetland impact require that the applicant make several demonstrations regarding their proposed land use referred to as the Sequential Review:

Sequential Review

Avoidance: First a demonstration must be made (to the Corps’ satisfaction) that no practical upland alternative exists to the proposed impact. If there is a demonstrably practicable alternative that would avoid impacting wetland the applicant would be required to redesign the project to avoid the wetland impact and no permit would be granted.
Minimization: Second, if the avoidance analysis determines that impact to wetlands cannot be avoided, through analysis of the site plan is undertaken to identify any practicable means of reducing the impact to wetlands. Minimization measures often involve manipulating infrastructure design and orientation to accomplish the project’s objectives while protecting on-site wetlands.
Compensatory Mitigation: Finally, if the Corps is satisfied that the applicant has successfully demonstrated avoidance and minimization yet proposed wetland impacts remain, the applicant must compensate for the loss of ecological function resulting from the project. There are numerous ways of satisfying the compensatory mitigation requirements but all begin with a quantification of the ecological function provided by the impacted wetland using a Wetland Functional Assessment Method to score the wetland. Once the impact is scored the same method is applied to determine the adequacy of the proposed compensatory mitigation to offset those impacts.

IP permit process

Pre-application: the greatest success in permitting is facilitated by inclusion of an ecological consultant on the design team. By cooperating with the architects, planners, and engineers, the ecological consultant can guide the project into conformance with the sequential review process. In certain circumstances permitting strategy can be enhanced by meeting with the regulatory agencies prior to submittal of a permit application to discuss specific technical issues.
Application: The submission of project information to communicate conformance of the project to the 404 permit requirements and requesting authorization to proceed. More so that many other permit processes, IP applications have a very precise format. Although seemingly intuitive, there are many aspects of the application that require expert assistance including content editing and graphic formatting. The application must include: the application form, narrative descriptions of the sequential review process, biological and ecological information for the subject property, a detailed mitigation proposal, and specifically formatted site plans.
Requests for Additional Information: Upon receipt of the application package, the Corps assigns a project manager who reviews the submitted materials. Invariably the project manager will require clarification on certain matters and generate a request for additional information (RAI). The applicant must then respond with the requested materials. Most often the RAI involves drawing details or clarification of proposed activities.
Public Notice: The Clean Water Act provides for public notification prior to authorization of wetland impact. Once the application has been deemed complete, the project manager produces a notice describing the proposed project which is published on the internet, provided to adjacent property owners and specific resource agencies (such as the Fish and Wildlife Service and the Marine Fisheries Service). The notice solicits comments which must be considered in the Corps decision to issue or deny the permit. An opportunity is provided to the applicant to rebut significant comments
Negotiation Period: Having reviewed the applicant-submitted materials and public comments the Corps communicates specific concerns to the applicant, providing opportunity for project modification before the agency decision is reached.
Decision Document: In accordance with federal environmental regulations (the National Environmental Policy Act) the corps must document the information considered in its decision to authorize (or deny) impacts to wetlands. The decision document is the final pre-issuance paperwork that is filed in the administrative record.
Permit Instrument: If the decision document supports issuance, a permit is drafted that details the conditions under which authorization to impact wetlands is granted. The conditions, both general and specific, describe exactly what must be done by the applicant to comply with the Clean Water Act.
Permit Implementation: Many permit conditions include actions that must be taken before an applicant can begin with the permitted activity. Such conditions include recordation of various legal documents, providing notice of commencement, using various Best Management Practices on the construction site, etc. Only after review of the permit instrument and implementation of the pre-construction requirements can project construction begin. After construction there are often monitoring and reporting requirements that may extend years beyond initial construction.

Nationwide Permit (NWP)

Many activities are so common and so often authorized that the Corps has undertaken to write permits for those activities for use nationwide. Such NWP’s have undergone sequential review, public notice and decision documentation and exist “on the books”. If a proposed activity (road construction, for example) can be shown to comply with an existing NWP, there is no reason to undergo the more exhaustive Individual Permit process. Presently there are presently about 50 NWP covering a variety of common activities.

Pre Construction Notification (PCN): Unlike IPs, there is no application for permit issuance, because the permit already exists. Rather, there is a procedure for demonstrating that the proposed activitiy complies with the conditions of the NWP called Pre Construction Notification (PCN). However, like the IP process, the PCN submittal is a very precise document that benefits from the expertise of an ecological consultant. Unlike the IP process, there is a specified timeframe (45 calendar days) within which the Corps must respond to the applicant. Failure to respond within the notification timeframe represents tacit authorization for the noticed activity.
NWP Verification: If after review of the Pre Construction Notification document the Corps determines that the proposed activity does comply with the conditions of an existing NWP, a verification letter will be supplied to the applicant authorizing project commencement.

Letter of Permission (LOP)

Upon review of a permit application, the Corps project manager has a means other than an individual permit for authorizing certain, low impact, activities. The terms of use for letters of permission differ between Corps districts but, essentially, it is a mechanism through abbreviated review procedures, specific low-impact activities can receive expedited authorization.

State:

Many states have environmental resource agencies that augment federal environmental regulations

Florida:

Florida Department of Environmental Protection
Water Management Districts
ERP, Dredg & Fill

IP
GP
Exemptions

Local Government Regulations

Wetland (and other resource) protection is often afforded through local initiatives as detailed in county Comprehensive Plans and Land Development Codes. Obtaining appropriate federal and state permits is not always the end-of-the-line for environmental authorizations. It is important to have a consultant familiar with local requirements review the project for compliance with local ordinances.

Over-water Structures

Most navigable waterways are within the jurisdiction of at least one regulatory agency. Any proposed structure that extends beyond the ordinary high water line or mean high water elevation will likely require authorization from one or more regulatory agency. Examples of over-water structures include Seawalls, rip-rap, marinas, docks, piers, and mooring piles. Regulation of these structures is often required from federal, state, and local agencies. The federal and state regulatory objectives often center

Federal: Section 10, Coast Guard
Florida: ERP
Local: DRC, LDC

Stormwater Permitting

Federal: NPDES
State: ERP
Local

Imperiled Species Permitting

Federal: Endangered Species Act
State: ERP
Local

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