Under the Clean Water Act (CWA), you cannot impact a federally protected stream or wetland unless you obtain a 404 permit from the Army Corps of Engineers (ACOE).See 33 U.S.C. §§ 1344(a), 1362(7). If you trigger the need for a 404 permit, you will also need a 401 Water Quality Certification. Ohio Administrative Code Chapter 3745-32.
After the release of the new jurisdictional rule this summer, most streams and wetlands will likely fall under federal protection (See, prior post discussing the new "Waters of the U.S. Rule"). Assuming you are dealing with federally protected wetlands or streams, what does the typical permitting process look like?
Step 1: Wetland Stream Assessment- If you are evaluating a piece of property (or multiple properties) for development you may want to consider a basic wetland/stream assessment. This is not a formal determination of the exact locations of wetland on the property. An assessment provides general information regarding the ecological issues on the property, including:
- General estimate of the quality, size and location of wetlands on the property;
- Quality and length of streams on the property; and
- Presence of any endangered species habitat on the property
Gathering this information can be extremely helpful in determining the viability of development on a piece of property. It can also assist with determining permitting timeframes.
When evaluating between a number of different properties, assessments can also provide critically important information when deciding which property would likely be the least costly to obtain required permits and involve the shortest permitting timeframes.
Step 2: Wetland Delineation- This is a formal determination by a qualified wetland consultant as to the exact location, size and quality of wetlands and streams on a property. A formal delineation is more costly than a basic assessment, but it is a required step for the permitting process. A property owner or developer must hire a qualified wetland/stream consultant to perform the delineation.
It typically takes around two weeks to complete a wetland delineation.
Step 3: Jurisdictional Affirmation- The Army Corps reviews the wetland delineation report and performs a site visit typically thirty (30) days after receipt of the report. After the site visit is complete, the Army Corps will issue a formal Jurisdictional Determination or JD. The JD is an approval of the wetland delineation.
Step 4: Determination of the Type of Permit Needed
After the Army Corps issues its JD, the next step is to determine the type of permit that the project will require. The type of permit is dependent on the nature of the wetlands and the size of impacts. Many developers try and configure their project to fall under a Nationwide Permit as described below because it is the least costly and has the quickest permitting timeframes.
Army Corps Nationwide Permit- Industrial and commercial developments can typically impact up to .5 acre of jurisdictional wetland or 300 linear feet of stream under a Nationwide Permit (NWP). A NWP is a streamlined permitting process and does not require the level of justification an individual permit requires.
- Timeframe: 3-6 months
Ohio EPA Isolated Permit- Ohio is in the minority of states that created their own wetland permitting program for any wetlands that do not fall under federal jurisdiction (i.e. Isolated Wetlands). After release of the "Waters of the U.S. Rule" it is even less likely that wetlands will be classified as isolated. If you have isolated wetlands, the application is filed only with Ohio EPA. (Note: You can have both federal jurisdiction and isolated wetlands on the same property).
- Timeframe: 3 – 8 months
Individual Army Corps 404 Permit and Ohio EPA 401 Water Quality Certification- If your project impacts more than the Nationwide Permit thresholds, it will need an individual permit. This is the most costly, complex and uncertain permitting process.
- Timeframes: 12-18 months
- Alternatives Analysis: Individual permits require a demonstration in the application that other locations were evaluated and the selected site is the best alternative for the project. Alternative site configurations must also be shown to minimize on-site impacts. The alternatives analysis can be highly subjective and the process can be very lengthy.
Step 5: Mitigation- In addition to the consultant fees discussed above, a property owner/developer must also mitigate for all stream and wetland impacts (Ohio EPA Wetland and Stream Mitigation Webpage). The regulations contain ratios of required mitigation which is tied to the quality of wetland or stream impacted (Ex: 2 to 1 or 3 to 1).
Regulations no have a preference toward approved wetland mitigation banks where credits can be purchased to offset impacts to streams or wetlands. To utilize a mitigation bank, credits must be available in the mitigation bank within the watershed where the project is taking place. Wetland mitigation bank credits can cost anywhere from $30,000 to $60,000 per acre. Stream mitigation credits can cost between $300-$500 per linear foot.
If credits are not available, then a conceptual mitigation plan will likely need to be submitted to the Army Corps and Ohio EPA. This could require identifying a piece of property off-site which currently is not protected. If mitigation bank credits are not available, the cost and complexity of mitigation becomes much more significant.