The developer, the engineer and wetland scientist are in a pre-application meeting at the Department of Environmental Services. They have set up the meeting because the proposed wetland impacts will require compensatory mitigation. They have in the conference room with them a Department wetlands inspector and the mitigation specialist. Into the room walk two or three other people. The developer turns to his project team and asks in a fine impression of Butch Cassidy, “who are those guys?”
Those guys are the EPA and the Corps of Engineers. In addition to the Department, through section 404 of the Clean Water Act, the federal agencies have authority over the proposed wetland impacts. And while the jurisdiction is the same, portions of the federal program with regard to secondary impacts to streams and vernal pools are not addressed by the Department. This leads to confusion and overlapping mitigation requirements.
Now, don’t get me wrong. I personally like the folks with the federal agencies. I have good working relationships with both the EPA and Corps personnel. But if they never showed up to another pre-application meeting, I and my clients would be happy campers!
Which brings me to the subject of assumption. What if the State assumed authority of the 404 program? What if you obtained a Department permit that also covered the 404 program. What if you never had to interact with the EPA or Corps of Engineers ever again? Would this be a positive thing for development?
There exists the possibility that the State of New Hampshire could assume the 404 program. What would that mean?
The State has regulatory authority over all wetlands and surface waters. So, there is no question about what are the “Waters of the US”. The State covers all Clean Water Act wetlands and waters and a few areas beyond. There would be no jurisdictional questions.
The State has a complete wetlands program, covering both inland wetlands and coastal wetlands. The State has a dedicated staff that only does wetlands permitting. The State has the same threshold for compensatory mitigation as the federal agencies. No change there.
The State follows the federal guidelines for project evaluation: avoidance, minimization and compensation. The State looks for the least impacting practicable alternative in evaluating wetland impact applications. No change there.
The 404 program requires enforcement of the provisions of the Clean Water Act. The State already has a compliance branch in the Wetland Bureau. They actively investigate potential wetland violations and resolve either by restoration, after-the-fact permitting, or, as a last resort, legal action. Often, the federal agencies ask for the Department to be the lead agency when potential wetland violations occur. No change there.
Ahhhh! Now we come to mitigation and secondary impacts. And here is where the fog begins, because despite the fact that the Department has very specific rules with regard to virtually all their actions including mitigation, the federal agencies do not. The State has a ratio of 10:1 for upland buffer preservation to wetland impact area. The federal agencies may be 15:1 or 20:1 or 30:1 or more, depending upon the “value” of the wetland resource. There may be more if there are secondary impacts to streams or vernal pools.
The State has a specific formula for calculation for the in-lieu fee payment for wetland impacts into the Aquatic Resources Mitigation Fund. However, that fee may be increased by some unknown figure imposed by the federal agencies based upon the secondary impacts. And there are no federal rules that specify how much that fee increase will be!
What are the down sides of assumption?
The State will have to expand the current program to cover secondary impacts. The 404 program has protective areas (buffers or setbacks) to vernal pools and streams. RSA 482-A would need to be expanded to cover not only direct wetland impacts, but secondary impacts as well. There would need to be legislative action.
However, the good news is the Department is strictly regulated by their administrative rules. So the issue of “how much mitigation?” or “what is the in-lieu fee?” or “what is the upland buffer preservation ratio?” will be spelled out before a project ever reaches the Department. Wouldn’t it be refreshing to know in advance just how much mitigation is enough mitigation?
I am really interested in what the rest of you think about assumption. For me, the less federal involvement, the better.
Send us an email. It doesn’t need to be long or complicated. Just say “yes” for assumption or “no” for the State not assuming the 404 program.
Thanks in advance for your responses.
“In My View” is an opinion article. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am posting this for associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
That concludes this Month’s article. Each past article will be stored on our website at www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.
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