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Consider the "No Net Loss" policy toward wetlands and state requirements for "mitigation" of wetlands that are destroyed

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Consider the "No Net Loss" policy toward wetlands and state requirements for "mitigation" of wetlands that are destroyed. The easements lecture and wetland banking readings for this week address the pros and cons of wetland replacement policies. Read them and discuss whether you think wetlands banking is a good idea, or if you have another regulator5/1/20 Wetland Mitigation Banking v AEC 432/532 Environmental Law Wetland mitigation banking is a property-rights regulatory tool combined with a prescriptive permit process to maintain wetlands while allowing economic development. 1 5/1/20 Federal “no-net-loss” policy seeks to conserve wetlands and replace those lost to development. o §404 CWA permits by the Army Corps of Engineers allow wetlands to be destroyed. o 1989 No-net-loss policy: Wetlands must be replaced when permits allow “significant” losses o 2003: Revision to require quality wetland replacement, not necessarily same quantity States have jurisdiction over all in-state wetlands and may have stronger protections than federal laws. o If there is a state wetland permitting program, must get both permits. No federal preemption of state laws. o Oregon example: 8 BURGUNDY DR W MEADO HAPPY VALLEY DR Corvallis VIEW DR Local W etland Inventory for North Subarea City Council adoption: A ugust 1st, 2005 Le VINEYARD DRIVE BURGUNDY PL PL HIGHLAND ou n ta i n V i ew 11s5w12 1 C r eek GRANGER AVENUE 2 N-FRA-W-2 4 T VALLEY PW N-FRA-W-4 CRESCEN BELLHAVEN DR SHASTA AVENUE DR 5 Pond N-LEW-W-2 N-JAC-W-4 N-FRA-W-3 a z ier WD# 97-0528 Cr ee FRAZIER CREEK DR k ELLIOTT CIRCLE HIGHLAND DRIVE WD#'s 98-0234, 90-0113 Fr PW 6 7 HEIGHTS DR N-FRA-W-3 N-FRA-W-1 N-FRA-W-3 BARBARA ST BROWNLY PL JAMES AVENUE RUSSELL SHILOH PL MARSHAL DR JAMES 11s5w15 8 N-JAC-W-4 PL WD#'s 98-0234, 90-0113 11s5w14 PW N-JAC-W-1 Pond JACKSON CREEK ROAD J a ck s o n WD#'s 97-0026, 96-0098, 97-0018 C r ee k PW CRESCENT N-JAC-W-2 VALLEY 11s5w13 N-JAC-W-3 DRIVE PW HIGHLAND DRIVE Jackson-Frazier Wetland Preserve N-NOR-W-1 Lester Avenue LESTER AVENUE HIGHLAND DR WILD ROSE WILD DRROSE DRIVE No 11s5w22 r th IA E as DR tC r e ek CAMELL BELVUE ST ST PL WAY ER GLACI d Railroa ST 9th 13th ST 12th ST DIXON ST 99w 14th ST HIGHLAND DR 11th ST DIXON ST HIGHLAND DR 13th ST 17th ST 11th ST CONSE 12th ST HIGHLAND DR R ST AVE GRANT 15th ST 10th ST 12th ST ST 11th ST 9th ST 19th 18th ST PL ST ST 9th 10th ST AVE 11s5w35 11s5w36 ST 3rd 4th AVE AVE City Limits ST TYLER BUREN 16th HARRISON JACKSON 1st ST 9th ST 9th AVE 1st ST 7th ST 4th ST 5th ST 6th AVE AVE MONROE 11th MEMORIAL PL ST BUREN ST 8th ST ST ST BLVD VAN JACKSON PW 3rd AVE AVE ST 27th ST 17th ST AVE ST 12th ST AVE POLK 11th 13th ST 14th FILLMORE AVE POLK VAN R Study Subareas 5th ST POLK AVE MONROE VE Wetlands ST ST 17th ST FREMONT AVE 15th 16th AVE BLVD RI BYRON PL AVE AVE TYLER HARRISON BUREN TE WD# 03-0706 RENNIE BLVD VAN AVE ET PW 9th 11th ST ST ST 10th 23rd ST 26th ST 27th ST N AVE REIMAN AVE 2nd ALTA VISTA DR GRANT PL 19th ST 16th ST 17th ST JEFFERSON WAY AM BUCHANA PIERCE WAY AVE Miles 0.5 0.25 LL Creek on 18th ST 0.125 PW WI 96 WATER WORKS AVE FILLMORE JACKSON MONROE CAMPUS WAY PW 63 80 AVE N AVE TAYLOR ST KLINE PL ARTHUR CIR KINGS BLVD 27th ST 20th ST Dix 23rd ST FERNWOOD PL 17th ST DREAM PL PL 14th ST 20th ST TYLER 14th ST 54 CORNELL BUCHANA POLK AVE HARRISON JOHNSON AVE 0 162 11s5w25 ld WD# 98-0315 AVE ek JACKSON AVE Sources: Field inventory conducted by Pacific H abitat Services. A ll base data provided by the C ity of C orvallis. D ata compilation and map production by Ecotrust, 2003. WC-OAK-W-4 WD# 99-0528 WD#'s 97-0381, 95-0264 r f ie N-GAR-W-2 STARKER BECA AVE Cre FILLMORE AVE SHORT AVE 11s5w34 JACKSON AVE WC-OAK-W-6 Ga GARFIELD AVE HAYES AVE GRANT AVE DRAPER PL LINCOLN AVE BUCHANAN AVE WAY AVE N-GAR-W-3 N-GAR-W-5 WD# 03-0596 N-GAR-W-1 HOBART AVE GRANT AVE BECA AVE COOLI TAYLOR 11s5w26 GREELEY AVE GRANT CIR BECA AVE LINCOLN AVE TYLER AVE HARRISON BLVD VAN BUREN AVE 13th ST KINGS BLVD 17th ST POLK AVE SPRUCE AVE N-GAR-W-4 WD# 93-0024 CLEVELAND AVE DIVISION ST 23rd ST 14th PL 17th PL 20th PL GRANT AVE DGE 158 CIR LANCA POWDERHORN 9th ST WD#'s 98-0520, 97-0382 WD#'s 96-0003, 95-0290 CIRCLE BLVD WD# 02-0360 HAYES AVE GREELEY AVE FILLMORE AVE AVE 11th ST KINGS BLVD DR MENLO DR HAYES AVE MULKEY AVE M apscale: 1 inch = 600 feet Projection: State Plane O regon Zone N orth, F IPS zone 3601 N orth A merican D atum 1983 LINCOLN AVE Information shown on this map is for planning purposes only and wetland information is subject to change. T here may be unmapped wetlands subject to regulation and all wetland boundary mapping is approximate. In all cases, actual field conditions determine wetland boundaries. Y ou are advised to conact the O regon D ivision of State Lands and the U .S. A rmy C orps of Engineers with any regulatory questions. TAYLOR AVE N-SEQ-W-4 FOUR ACRE ST MENLO ek NORWOOD PL re PL ARTHUR AVE GARFIELD AVE GARFIELD AVE Parcel boundaries GRANT AVE PL PL N-SEQ-M70-1 N-SEQ-W-5 LAWNDALE PL CIRCLE BLVD SPRUCE AVE MENLO DR IEW PW GARRYANNA PL CLEVELAND AVE Subarea / U G B boundary CREST DR LANCASTER 13th ST CIR DIXON ST GREEN ANGELEE Walnut PW AVE MAPLE LARCH AVE CIRCLE BLVD 11s5w27 PL CREST Railroads CREST DR FORESTGREEN AVE LOCUST AVE C ARTHUR CIR ESTAV PW SHERWOOD HIGHLAND DR ANGELICA DR HIGHLAND DR SENECA PL DR EW ESTAVI xo n 25th PL W etland site number referenced in leaf green. D SL wetland determination numbers are referenced in deep red. PLS section numbers are referenced in light brown. GRANT AVE PL PL 29th PL CIRCLE BLVD W etland field data points 45 HAYES AVE 51 E FORESTGREEN AVE Di 47 PW 50 PL CYPRESS AVE BURK DIANE PL N-VIL-W-3 WD#'s 98-0520, 91-0028 KIRSTEN IRONWOOD AVE R AVE CONSE r OAK 12th ST GREEN PL KINGS BLVD 27th ASHWOOD DR POLK WD#'s 94-0187, 91-0115 e en TERRACEGREEN PL McKINLEY DR W etlands Field V erified W etland Rivers PLS grid 10 N-VIL-M70-1 G CIR ST ROOSEVELT DR PLYMOUTH 11th V EL T DR CONIFER BLVD PW 13th ST 29th ST SE WALNUT BLVD BLVD WALNUT LEGACY PL TAFT AVE RO O Potential W etland Streams 21 JAMESON DR !( 9 CONIFER BLVD MAXINE AVE ANJNI CIR GARRYANNA DR PL W etland / U pland Mosaic Pond AVE MAXINE STEWART PL ANJNI CIR PL JONQUIL E LUPIN Locally Significant W etland 33 CIR CONIFER BLVD a ge ek ST Legend PW 31 PW W PL Vill C re 29th WD#'s 02-0533, 99-0233 WC-DIX-W-2 11s5w24 ST a 13th PL PW WD# 99-0562 ESTAVIE PL DEER AUTUMN D DR Seq PL FOX u oi BEAVER PL PL DR HIGHLAN ST 11s5w23 22 20 MONTEREY WALNUT BLVD MEADOW PARK CIR MAXINE CIR ELKS 19 WC-DIX-W-1 99w FOXTAIL DR BERRY 11 12 WD# 97-0382 STER WD# 96-0001 18 DR POPPY HUCKLE WD#'s 00-0131, 92-0092, 00-0391, 99-0233 ARROWOOD CIR DR PL MINK POPPY DR Pond OXFORD ELKS N-SEQ-W-2 PL JACK LONDON ST E 23 24 ST ND RBELL PW WD# 99-0339 HIGHLA WC-DIX-W-5 WD#'s 01-0171, 00-0619 SILVE PL N-VIL-W-2 N-SEQ-W-3 DR WC-DIX-W-4 WD#'s 01-0171, 99-0283 BOXWOOD PW o Local: Some OR cities and counties also restrict development of wetlands M 11s5w11 DR o Removal-Fill Permit from OR Dept of State Lands: Mitigation required for any state permit o Joint-permit Application with ACOE, but need both to approve permits bu rgN-LEW-W-1 WD# 91-0136 FULLER RD MOSELL LEWISBURG AVENUE wis PW MOUNTAIN VIEW DRIVE E PL SULPHUR SPRINGS RD 11s5w10 HUNTINGTON City of Corvallis Wetland Map 2 5/1/20 What is wetland mitigation? o When a permit is issued for wetland destruction, the developer is responsible for replacing them, typically in the same geographic area and the same type of wetland. Wetland mitigation requirements are valued by their ecosystem functions. o Agency experts measure the ecosystem functions of the wetlands to determine: o The “value” of the wetlands destroyed o The “value” of the wetlands that are created o Attempts to create equivalent ecosystem functions in the same geographic area. o Restoring historical wetlands is favored. o Ecosystem functions are translated into “credits,” not only based on acres lost. Geographic mitigation regions in Oregon’s Willamette Valley 3 5/1/20 Wetland creation can be done proactively in wetland mitigation banks. Example: Beaverton, OR, restoration of historical wetland that would have been there 150 years ago: 90 acre wetland = 45 credits At average market prices in 2008 ~$3.4 million o Landowner steps: o Apply to develop wetlands o Plan & design: Consultants o Do wetland development o Agency steps: o Approve plan o Check in on wetland function o Release credits as function emerges (5-15 years) An easement is the legal tool that keeps the wetland in place into the future. o Easement: An interest in land owned by another person, giving the right to control the land for a specific limited purpose. o The developer pays the farmer to buy the easement that confers a right in the farmer’s land. o In exchange for the money, the farmer promises to maintain the land as a wetland, giving up all rights to use it to farm or develop. $ Maintain as wetland 4 5/1/20 Legal tools: Permits, markets, and easements. Approve credits, performance standards and liability Obligation to mitigate wetland losses for permit to develop Regulators $ Easement: Right to farm/build Mitigation Bank Landowner Monitoring and enforcement of easement terms Developer/Permitee Government/Non-Profit Easement Holders Transfer easement and $ for long term monitoring Wetland mitigation banks are an innovative conservation model that comes with both benefits and criticism. Now that you know how it works, let’s discuss! 5 5/1/20 Three federal agencies oversee wetland regulation. o §404(a): Army Corps of Engineers o Daily administration, issues permits o ~3% of permits are denied o EPA Office of Wetlands Protection o Oversees program and develops guidelines for reviewing permits o §404(c): EPA veto over Corps permitting o US Fish and Wildlife Service o Advisory role regarding species and habitat impacts The Clean Water Act protects wetlands as a types of surface water. o Wetland protection goal: o To “restore and maintain chemical, physical, and biological integrity” of the nation’s waters. o Definition of wetlands: Get a wetlands delineation o Saturated by surface or groundwater sufficient to support vegetation adapted for saturated soil conditions during some part of year o Hydric soils = saturated, anaerobic o Functions: Water filtration, support plant and animal life, flood buffer o Many types: bog, fen, marsh, playa, prairie pothole, slough, swamp… 2 5/1/20 Federal jurisdiction must be established for Clean Water Act protections to apply. o Federal jurisdiction: Wetlands that are adjacent or hydrologically connected to navigable or interstate waters o Commerce Clause: Does wetland health or regulation impact interstate commerce? o SWANCC case (2001): No jurisdiction over isolated in-state wetlands o Rapanos v. US (2006): Only wetlands with a “significant nexus” to jurisdictional waterways o State jurisdiction: All in-state wetlands Federal authority can be exercised if there is a point source discharge of pollution. o Point source = Bulldozers, backhoes, etc., in a wetland o Pollution = Chemicals, soil, or changing hydrological function o Discharge = Addition of new material into wetland o Soil re-deposited in wetland after digging or sidecasting is a pollutant o “Incidental fallback” is not a discharge o Exception for “normal farming operations” in wetlands, such as growing grass seed on seasonal wetlands or cranberries in bogs. 3 5/1/20 Quick Quiz! Under the Clean Water Act and Commerce Clause, the EPA and Army Corps of Engineers will always assert jurisdiction over: A. Navigable and interstate waterways B. Tributaries to navigable waterways and interstate waters. C. Wetlands with a hydrological connection to navigable and interstate waters. D. All of the answers are correct. §404 General Nationwide and Regional Permits are administered by the Army Corps of Engineers. o §404(e): General permits o Projects that “have minimal adverse effect on the aquatic environment with little or no delay for the regulated public.” o NWP 39: commercial and institutional development o Fill less than ½ acre of wetlands o Conditions apply: May not substantially disrupt the movement of native aquatic species, spawning areas, and migratory bird breeding areas…etc. o §401 State Water Quality Certification can deny permit 4 5/1/20 Individual Permits are for projects with unique and more significant impacts. o §404(b): Guidelines to issue permits: o No alternative ways to accomplish the project without disturbing the wetland o Projects that are dependent on being close to water more likely to get permit (dam, docks, etc.) o Corps may impose conditions to mitigate impact o Wetland mitigation banks: Restore, create, or protect wetlands elsewhere The Army Corps of Engineers enforces CWA wetland regulations o For unauthorized filling of wetlands or violating permit conditions o After-the-fact permit cannot be issued until court proceedings are completed o Administrative enforcement order or fines o Civil enforcement for violations o Criminal enforcement: Referral to Department of Justice o Citizen suits for filling of a wetland without a permit o About 6,000 violations reported per year 5 5/1/20 The USDA “Swampbuster” program is designed to stop the conversion of wetlands to agriculture. o 1985 Food Security Act: Swampbuster Program o Protects natural wetlands, abandoned wetlands, and wetlands converted to crop production after Dec. 23, 1985. o Loss of USDA benefits for conversion of wetlands o Mitigation allowed o Wetland Reserve Program Easements or Restoration CostShare Agreement Over U.S. history, we have lost half of the 220 million acres of wetlands. We are holding steady or slightly growing freshwater wetlands, but marine and estuary wetlands continue to decline. 6y idea for protecting wetlands.