By: Javier Vélez Arocho
The impacts to wetland areas are considered a regulated activity by the US Army Corps of Engineers (USACE). Before you consider purchasing and developing a property, it is essential to understand that the presence of wetland areas within the parcel might be subject to a permitting process by a federal regulator. Unauthorized impacts on these lands are subject to hefty administrative fines and potentially criminal actions by the US Government.
What is the importance of a wetland?
Many researchers and authors have described wetlands as key ecological components for many years because of the extensive food chain and the rich biodiversity they support. These ecosystems play a significant role in the landscape by providing unique habitats for various flora, fauna, and microbial species from both terrestrial and aquatic systems. More recently, researchers describe wetlands as crucial water-quality enhancement ecosystems, flood mitigation systems, carbon sinks, and climate stabilizers globally. Coastal wetlands form a critical ecotone at the boundary between freshwater and marine environments and thus provide essential habitats and nutrients to both systems. They are valued by society because they stabilize the coastline, provide protection from storm surges and flooding, improve water quality by filtering nutrients, sequester carbon, and provide aesthetic, recreational, and tourism value. This value is considered a key element in the efforts to restore coastal wetlands worldwide, significantly if they are being affected by a construction project.
Army Corps of Engineering Permits
We will guide you by obtaining the necessary permits from the state and federal government if an activity requires the impact of wetland areas. Department of the Army permits under the Clean Water Act Section 404 must comply with Section 404(b)(1) Guidelines (40 CFR 230), which establish the environmental criteria by which activities are authorized under the federal regulation, including methods to reduce project impacts on the aquatic environment. This procedure starts with avoiding effects on aquatic resources to the extent practicable, minimizing unavoidable impacts, and finally, compensating for any remaining inevitable impact on aquatic resources.Generally, wetland restoration and creation first involve establishing or re-establishing appropriate natural hydrologic conditions, followed by selecting the proper plant communities. Although many of these created and restored wetlands have become functional, there have been some cases of failure, usually due to a lack of proper hydrology. Having groundwater inflow is often desired because this offers a more predictable and less seasonal water source. Surface flooding by rivers gives wetlands a seasonal flooding pattern, but such wetlands can be dry for extended periods during the dry season. Depending on the surface, runoff and flow from low-ordered streams can be the least predictable. Often wetlands developed under these conditions are isolated pools and potential mosquito havens for a good part of the growing season, so it essential for the permittee to consider the design before starting its construction. It is generally regarded as optimal to build wetlands where they used to be and where the hydrology source is still in place for the marsh to survive.
Our company recommends avoiding impacts to wetland areas due to the many considerations that must be taken, including soil instability, has implications to high-value natural resources, and the costs associated with restoration and mitigation activities. However, suppose it is necessary to carry out the work and impact the wetland systems. In that case, there are several alternatives to minimize these impacts by carrying out significant restorations and mitigations that will help avoid a net loss in the number of wetland resources that exist in the area. Here are our recommendations:
Step 1 – Assess if your proposed activity will impact US Waters
The impact on wetland systems is managed by the United States Army Corps of Engineers under Section 404 of the Clean Water Act. Any person or entity that proposes an activity that impacts these natural systems must request permits through various methods. Depending on the proposed action, the site’s existing conditions, and the type of water body, the USACE will require two necessary permits: the nationwide or Individual Permit Application (JPA).
a. Nationwide permit – cover some of the following activities: Repair, rehabilitation, or replacement of previously authorized, currently serviceable, structures or fills, discharges associated with removal of accumulated sediments and debris in the vicinity of existing systems, including intake and outfall structures, and associated canals. Other activities not listed here are covered. This permit has limited action activities and the number of times that can be requested. There are over 50 activities covered by this permit.
b. Individual permits – The basic form of authorization is the separate permit. Processing such permits involve evaluating individual, project-specific applications in what can be considered three steps: pre-application consultation (for larger projects), formal permit application review, and decision-making. Pre-application consultation usually involves one or several meetings between an applicant, USACE staff, interested resource agencies (federal, state, or local), and sometimes the interested public. The primary purpose of such meetings is to provide informal discussions about the pros and cons of a proposal relative to its effects on the aquatic environment while the applicant is still in the planning process. The process allows for a consideration of potentially less environmentally damaging alternatives available to accomplish the project purpose, discuss measures for reducing the impacts of the project, and inform the applicant of the factors the USACE must consider in its decision-making process. Once a complete application is received, the formal review process begins. The project manager prepares a public notice (if required), evaluates the project’s impacts, considers all comments received, addresses potential modifications to the project if appropriate, and drafts or oversees the drafting of proper documentation to support a recommended permit decision. The permit decision document includes a discussion of the project’s environmental impacts, the findings of the public interest review process, and any special evaluation required by the type of activity, such as determinations of compliance with Section 404(b)(1) Guidelines.
Step 2 – Selection Process
The first step is to select which permit will be appropriate to address the proposed action. Once the selection process has been completed and the applicable permit is identified, it is essential to follow the agency requirement and correct the forms. Usually, the nationwide permits are easier to obtain as they include a specific group of activities covered under this format. The USACE has prepared a chart to help you understand if a nationwide permit can cover your proposal. This information can be found at the following link: USACE.
The preparation of the documents for a nationwide permit shall be prepared by a qualified environmental consultant to avoid unnecessary hassles with the permit process’s regulators and complications.
If your proposal requires more complex activities and will impact larger areas of jurisdictional waters, the process will require an Individual Permit Application.
Step 3 – Individual Permit Application or Joint Permit Application (JPA)
a. Prepare the JPA – the form must contain the necessary information to establish the number of acres to be impacted by the proposed action. It is essential to pay attention to the data requested, as any lack of information will cause unnecessary delays during the review process. It is also important to include detailed drawings with specifications of the proposed action before a permit application gets at the PRDNER (the state regulator receives the application and will submit the package to 13 state and federal agencies for review).
b. Prepare a JD – As part of the document file, the entity proposing the activity must prepare a study certifying US Waters’ presence on the site and to what extent the area will be impacted. The document is known as a Jurisdictional Determination or JD. Your environmental consultant will conduct this study in the parcel, where the mitigation will assess the existing conditions. This document will be used as a baseline to prepare a restoration and mitigation project in this parcel. The JD defines clearly what parts of the property are considered US Waters or jurisdiction of the USACE.
Step 4 – Water Quality Certificate
During the review process, the Puerto Rico Environmental Quality Board will issue a Water Quality Certificate for the specific action. The proponent will cover the costs of the public notice issued by the state regulatory agency. A consultant can prepare the form as required by the PREQB.
Step 5 – The Wetland Restoration and Mitigation Plan
Another critical element to consider when looking at a parcel impacted by construction activities is the existing conditions and the prevalent vegetative communities. If the property has herbaceous wetlands, the considerations during the development of a restoration proposal will be vastly different if the area has mangrove forests. One of the most important federal agencies reviewing an Individual Permit Application is the NOAA’s National Marine Fisheries Services or NMFS. The NMFS considers mangrove forest systems as essential fish habitats, meaning that any proposed action impacting such areas will require constructing structures like canals and the planting of mangroves to avoid any net loss of fish habitats. An environmental consultant could determine the proper mitigation strategy to comply with the federal and state regulators.
a. Design of Compensatory Mitigation Areas
According to the above-reference guidance, there are four types of wetland mitigation methods: establishment (or creation), restoration (re-establishment or rehabilitation), enhancement, and protection or maintenance (preservation). Some of these wetland mitigation methods could be more successful than the others, depending on the hydrological, chemical, and biological conditions around and within the mitigation area. Hydrological conditions, including variability in water levels and water flow, are the primary forces influencing wetland development, structure, functioning, and persistence.A compensatory wetland mitigation project’s primary goals are to obtain a no net loss of national wetlands acreage and avoid or minimize the impacts on the ecological functions and values that wetlands provide on a geographic region. Although wetland establishment or creation has been widely used as a compensatory method to avoid or minimize wetlands functions and values, the no net loss of wetland has not been met for wetland functions. A tendency to restore former wetlands or enhance existing ones has proved to be more successful, given that wetland hydrology, soils, and hydrophytic vegetation is usually present or is close to the mitigation project area. One of the most important reasons for the lack of success in establishing some new wetland projects is that the necessary conditions for its development are not close to the mitigation site. Other considerations may include constructing specific features like open water canals, the establishment of forested wetlands from uplands, enhancement of degraded herbaceous wetlands, and the establishment of forested upland buffer zones.
Step 6 – Final Submittal Package: checklist
The final submittal package must include all the documents mentioned above, including the proposed mitigation plan. If the federal regulator does not object to the project or has significant concerns, they will request public comments through a public notice in a general distribution newspaper. The final step will be the approval of the permit requested with the specifications issued by the USACE. It is essential to pay attention to the permit’s specific requirements, including the regulator’s time to complete the different phases of the permit.
Once you receive the news of a brand-new permit by the federal regulator is vital to pay attention to the following details.
a. The agency will give you specific guidance and conditions that you must comply with to avoid revoking the permit and subsequent regulatory actions.
b. Permit timeline – you must attain the following conditions: the permit’s validity (3 years) to commence the work, six months to start the construction of your mitigation proposal, a 5-year term to complete and maintain the mitigation project.
c. The construction and maintenance of the mitigation project include reporting and performance conditions. Performance standards are measurable criteria that are evaluated at periodic time intervals during monitoring and serve as indicators of the need for adaptive management or contingency actions. The established performance standards measure the success of compensatory mitigation during the monitoring period. Some of the specific criteria included in the standards are vegetative cover colonization, natural recruitment, the survival performance to assess planted vegetation, and the natural vegetative colonization. Also, establishing a survival rate of the planted trees at all mitigation sites is essential to measure success.
What to expect during the construction of a wetland restoration and mitigation project
As part of the analysis, when considering the construction of a wetland restoration and mitigation project, you will be dealing with live trees and plants as well as the weather. These elements will play a vital role in the success of mitigation activities.Weather – weather can play a crucial element in the success of a mitigation project. An extensive drought period and too much rain or winds, especially from storms and hurricanes, can severely impact a mitigation and restoration project. You must be prepared to manage these scenarios. Other impacts that may affect a restored area’s performance are the extensive use of trimmers for cutting grass as part of the parcel’s regular maintenance. Once you can reach a high survival rate of trees, you may want to consider closing the process with the USACE.Our experience shows that the planning and preparation of a restoration proposal must be carefully analyzed to establish the appropriate variables, understand the existing soil conditions, and select suitable species that allow a higher survival rate. During the planning and conceptualization of a wetland restoration project, your environmental consultant should carefully analyze the risks and probabilities of success in reforesting a particular area. The main goal is to return the property to its original state. The data collected during the construction and maintenance of this project will improve the remaining construction activities. Our team will assist you in planning, construction, and maintenance of wetland restoration and mitigation projects.