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SWIS Recommendations: The Pieces of a State Wetlands Programs (Continued)

C. WETLANDS PERMITTING PROCESS

1. Streamlining the Permit Process

Mitigation Requirements:

Lack of consistency among state agency mandates

Watershed-based mitigation planning

Mitigation requirements

Agency representatives from the Department of Fish and Wildlife frequently consult with Ecology Shorelands Program staff during the mitigation plan approval process and may refer applicants to Ecology for mitigation guidance, even if Ecology does not have jurisdiction or regulatory authority in the case. Work group members were concerned that the agencies should agree on guidance for conducting mitigation. This mitigation guidance should be based on the site specific circumstances to ensure greater ecological benefits.

Recommendation #23: State and federal agencies, with public participation, should jointly draft guidelines for conducting wetland mitigation. Regulatory Reform Work Group

Hydraulic Code:

Permit timelines

To ensure consistency among agencies, work group members suggest that agency permitting staff meet periodically to discuss complex projects and develop consistent, coordinated mitigation requirements for permit applicants. This concept is presented in detail below.

Permit Review:

Work group members suggested that this interagency group meet monthly. It should be noted that this timeframe may not allow discussion of HPA conditions before they are finalized, given that HPA decisions must be made within 45 days.

Recommendation #24: Bring all state and federal agencies with wetlands permitting or commenting authority together on a regular basis, perhaps monthly, to discuss permit applications. This interagency group will review selected wetland proposals to provide consistent and timely responses. Permit applicants will be invited as participants to these meetings. Regulatory Reform Work Group

2. Property Rights and Takings

The State Attorney General's Office has provided guidance to local governments to help them avoid potential taking of private property. This guidance is intended to be used when local governments develop or review their regulations to assist them in avoiding takings claims. These five statements are:

1. Does the regulation or action result in a permanent physical occupation of private property?

2. Does the regulation or action require a property owner to dedicate a portion of property or to grant an easement? (The dedication of property must be reasonably and specifically designed to prevent or compensate for adverse impacts of the proposed development and substantially advances a legitimate governmental interest.)

3. Does the regulation deprive the owner of all economically viable uses of the property?

4. Does the regulation have a severe impact on the landowner's economic interest?

5. Does the regulation deny a fundamental attribute of ownership?

3. Water Quality Standards for Wetlands

Revised water quality standards for wetlands have the potential to make the existing regulatory process more streamlined and predictable. The establishment of narrative standards for the unique and variable traits that wetlands exhibit will improve the consistency and predictability of Section 401 water quality certifications for federal permits. Also, they will provide better information for decisions regarding wastewater discharge permits, stormwater permits, technical assistance programs, and policy development.

The existing draft standards for wetlands that were developed for the last triennial review of the state's surface water quality standards should be considered as a starting point for future review. Standards for wetlands should be developed in conjunction with broad-based public involvement during the next triennial review and update, scheduled to commence in 1994.

Recommendation #25: The Department of Ecology, with broad-based public involvement, should adopt water quality standards that are specific to wetlands in the 1994 surface water quality standards triennial review process. The standards should identify various wetland types in the state, beneficial uses of the state's wetlands, and chemical, physical, and biological criteria to support these beneficial uses. Regulatory Reform Work Group

4. Reducing the Overlap Between Local, State and Federal Programs

State Assumption of the Federal §404 Program:

Advantages

• One layer of government is removed from the wetlands regulatory process.
• State can control the program and ensure that it is compatible with all state laws and is as efficient as possible.

• Before requesting assumption, state must have a program in place that provides protection comparable to that of the federal 404 program.
• It is expensive to assume 404 authority, and no federal money is provided.
• The state already has ability to approve, condition or deny 404 projects by denying water quality certification.
• EPA can "second guess" state's decisions.

General Permits For Avoiding Regulatory Duplication:

1. Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or

2. The General Permit would result in avoiding unnecessary duplication of regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences are individually and cumulatively minimal.... (33 CFR Section 323.2(h))

This section addresses General Permits authorized for the purpose of avoiding duplication between the federal wetlands program and local wetlands programs. The Corps can issue a General Permit in instances where there is a state, tribal, or local program that ensures at least the same level of resource protection as 404. The second program doesn't have to have a process identical to 404, as with assumption, but must afford the same level of protection. (Note: This type of General Permit is commonly referred to as a "Programmatic General Permit," although this term does not specifically appear in the federal code.)

General Permits can be issued for a variety of different conditions; they can address some or all of the activities covered by 404, or can deal with a specific geographic area. For example, if there is an existing state permitting process, the state could apply for a General Permit to regulate activities in Class 1 wetlands, or perhaps, to regulate all activities within a specific area of the state. Several states on the east coast have been issued General Permits. The Corps and EPA maintain responsibility for overseeing the implementation of General Permits, under the Clean Water Act. They retain authority to "kick out" individual projects that do not meet the requirements of an authorized General Permit.

The legal requirements for issuing a General Permit are very brief and do not provide clear guidance. New guidance is currently being developed by the Corps' headquarters staff, in Washington, D.C.

Advantages

• Can provide comprehensive resource protection, based on wetlands functions and values.
• Can make permit process more efficient and predictable.
• Only one layer of government is involved in regulating the activities and area covered by the permit.
• Program has to be as protective as 404, but doesn't have to use an identical process, i.e., does not have to have same alternatives analysis process, etc.
• Can be issued for a limited set of activities or a limited geographic area for projects resulting in minimal impacts.
• President Clinton's wetlands policy supports issuance of General Permits.

• Since new guidance has not yet been distributed, it is unclear exactly what the Seattle district of the Corps would require before issuing a General Permit.
• Would require time and effort working with the Corps and EPA before approval.
• Environmental consequences of the General Permit must be individually and cumulatively minimal.
• State may have to develop regulatory program for certain activities or areas of the state before General Permit could be issued to the state.
• Similarly, a local government would have to develop and adopt a regulatory program before a General Permit could be issued to a local government.
• Could be expensive, but perhaps not more expensive than current system.

General Permit Issued to a Local Government

Work group members agreed that, if General Permits are issued to local governments, they should focus on the type or quality of the wetlands themselves, rather than the type of activity being proposed. For example, a General Permit might not authorize activities in highly functional wetlands in the planning area, but could allow activities in less functional wetlands under a streamlined permit process. In this example, criteria for permit decisions could be decided up front, during the planning stage. This would provide protection of the most functional wetlands in a planning area, would enable local governments to provide more certainty to the public, and would speed up the local processing of wetlands permits.

Recommendation #26: A proposal for a General Permit should be completed by a local government on a pilot basis, and funded by the State Wetlands Integration Strategy (SWIS). The conditions for this General Permit should be developed jointly by the local government, state and federal agencies, and the public, including members of the regulated and environmental communities. These should include, at a minimum, the "recommended conditions for issuance of a General Permit" specified in the final SWIS report. Regulatory Reform Work Group

Recommended Conditions for Issuance of a General Permit

1. Inventory. An inventory of the wetland sites in the planning area shall be conducted before the General Permit is issued. This inventory does not have to include a delineation of the wetlands, but needs to include general information concerning their location, size, type, and function.

2. Delineation before wetland alteration. Although a delineation does not have to be done before a General Permit is issued, a delineation is required during the local permit processing and before a wetland is altered. The General Permit should specify the standards for conducting the delineation and possibly designate the party (or agency) who will conduct or certify the delineation.

3. Functional assessment. A functional assessment of the wetlands in the planning area should be conducted before issuance of the General Permit.

4. Planning Process. The local government should establish goals for addressing natural resources within the jurisdiction. They should also identify zoning designations and develop a buildable lands inventory. The local preferences for development sites should be based on the results of the functional assessment. Following the local planning process, wetlands in the plan area should be designated for protection or development, or specified as mitigation sites.

5. Mitigation. Protocols for conducting mitigation should be specified in the General Permit.

6. Monitoring. Standards for local monitoring of required mitigation sites should be established. Monitoring data should be periodically delivered to state and federal agencies for programmatic review.

7. Regular review of the General Permit. The Corps of Engineers and the Department of Ecology should review local decisions made pursuant to the General Permit. This review should be conducted annually for the life of the General Permit. The results of the pilot project should be used to determine the appropriate interval for Corps' review of future General Permits in Washington.

8. Amendment or revocation of the General Permit. The General Permit should specify under what conditions it might be amended or revoked. For example, if the local government amends a local ordinance that would affect local wetlands permitting decisions, the General Permit should automatically be reviewed to determine if it should be amended or revoked. The General Permit should also specify the local appeal process that will be used if a decision made under the General Permit is appealed.

9. Training for local staff. Local government staff should receive wetlands technical training to assist them in making informed wetlands decisions. As an alternative, the local government may contract with a consultant to do this work.

Corps' Alternatives Analysis Guidance:

Alternatives analyses are required to ensure that adequate and appropriate consideration has been given to minimizing environmental impacts during the site selection and project design process. However, alternatives analyses can be time consuming and costly for project proponents. Because of the time and expense involved and a desire to achieve greater consistency with the Growth Management Act, some work group members suggested that the alternatives analysis be limited in certain cases. (The work group did not reach consensus on this proposal. For a more detailed explanation of this suggestion, see Section II.)

When considering project alternatives, it is important to recognize that certain types of impacts do not have substantial adverse effects when considered on a site-by-site basis, but could have a much greater impact if cumulative impacts were considered on a regional scale. Some work group members stated that addressing this issue and abbreviating the alternatives analysis process should be dealt with through the General Permit process. A General Permit could include a functional assessment of a jurisdiction's wetlands as part of a thorough local planning process, thereby limiting the scope of an alternatives analysis at the time a permit is issued. A General Permit could also include specific implementation strategies and outline criteria for mitigation, monitoring, etc. (See earlier discussion of General Permits.)

Current federal guidance provides the Corps the flexibility to define the scope of the alternatives analysis requirements to fit the specific needs of the project applicant. For example, the Corps can require a less intensive alternatives analysis for an individual than for a corporation. The Corps also considers the potential impacts of projects and the analysis is commensurate with the level of impacts expected.

Recommendation #27: The U.S. Army Corps of Engineers should clarify how existing alternatives analysis guidance may be better applied in Washington and better coordinated with the Growth Management Act. Regulatory Reform Work Group

Interlocal Agreements:

Potential Uses of Interlocal Agreements

• Elimination of regulatory overlap in wetlands regulation by establishing lead agency responsibilities for certain activities, e.g., verification of wetlands delineations, field work to support jurisdictional determinations, coordinated application requirements, and coordinated scheduling of permit and enforcement processes.

• Efficient acquisition of technical expertise and support for wetlands regulatory programs through joint hiring or funding (or cooperative use) of the services of wetlands specialists.

• Elimination of duplication and conflicts between county and city sensitive area ordinances within urban growth and future annexation areas under the Growth Management Act by specifying how the county and city will coordinate different responsibilities.

Recommendation #28: Interlocal agreements authorized by Chapter 39.34 RCW should be developed with appropriate public input by the State Wetland Integration Strategy (SWIS) pilot projects to demonstrate their effectiveness at eliminating regulatory overlap between federal, state, and local agencies; to achieve joint use of available technical resources; and to foster cooperation among the agencies regarding the development of local or watershed-based wetlands regulatory programs.

5. Enforcement

• The Corps and EPA have joint enforcement responsibility for section 404 of the Clean Water Act. There are several hundred 404 violations per year in the State of Washington and these two federal agencies have approximately eight people to cover the entire state.

• There are over 230 local governments with primary jurisdiction to administer and enforce the Shoreline Management Act, with Ecology in a review and oversight role; there are thousands of miles of shorelines in the state. Ecology has only two people for the entire state to deal with over 150 significant complaints per year. At the local level, shoreline enforcement often is combined with zoning or building enforcement departments and is not given adequate emphasis or priority.

• The Department of Fish and Wildlife deals with dozens of hydraulic project approval (HPA) violations per year.

• Local governments must enforce their grading, clearing and/or drainage and sensitive areas ordinances, usually with limited staff.

Recommendation #29: Enforcement actions involving wetlands violations should be conducted with adherence to the following:

• In most cases, voluntary restoration should be preferred to monetary penalties and court action; and
• In addition to restoration being required, knowing, repeat or flagrant violators should receive monetary penalties and should be taken to court.

Recommendation #30: Revenues derived from monetary penalties should be used directly to restore and protect wetlands, rather than reverting to the U.S. treasury or the state general fund. If this recommendation cannot be achieved under current law or administrative policy, legislation should be developed to allow this use of monetary penalties. Further, agencies and programs should be identified as recipients of the monetary funds for restoration of wetlands. Regulatory Reform Work Group

Agencies should coordinate and share information on enforcement, including statistics on numbers of violations, location, and resolution. For example, enforcement efforts would be more effective if agencies created a common complaint form which covers violations of the federal Clean Water Act (section 404), the Shoreline Management Act, the Hydraulics Code, and, where feasible, local grading, clearing and/or drainage and sensitive areas ordinances. Also, enforcement information should be placed in databases that are easily used on a Geographic Information System.

Recommendation #31: A lead agency should be designated to coordinate information concerning violations of various statutes, where feasible. Regulatory Reform Work Group

The designated lead agency should provide other agencies having jurisdiction with copies of violation reports on significant wetland fills and site inspections in a timely manner. When conflicts are identified, the lead agency should take responsibility for coordinating with other agencies to resolve the conflicts.

6. Mitigation Banking

Wetland mitigation banking has been considered and used in a number of states as an effective alternative means of mitigating wetland impacts where on-site mitigation is not feasible, is of extraordinary cost, is not likely to be ecologically successful, or would provide lower resource values. The concept of mitigation banks should be pursued in order to accomplish enhanced wetland protection. It should be recognized in this effort that a banking program is neither a panacea nor a substitute for existing wetland mitigation requirements. Banks should be utilized only when replacement is required and mitigation sequencing has been applied. Some work group members think that mitigation sequencing should not be required in all cases: they reason that, if the mitigation bank provides greater wetland functions than the alternate mitigation, why first undertake a costly mitigation sequencing process?

There has been increasing interest by resource agencies, local governments, federal agencies, and by some private parties in mitigation banking. For example, specific authority was provided by Congress in the passage of legislation for financial support of state transportation agencies' wetland banking activities.

Advantages

Wetland banking can help to achieve the federal and state goals of no-net-loss of wetlands. Wetland mitigation banks can also achieve several other goals:

• provide more flexibility in wetland protection
• reduce the costs of projects while maintaining ecological functions
• expedite interagency coordination and project permit reviews
• actively protect wetlands, rather than simply creating protection "plans"
• provide for mitigation on a larger scale rather than having several smaller mitigation efforts
• account for all wetland impacts thereby providing incentives to minimize impacts and maximize mitigation efforts
• provide mitigation that is maintained and monitored more easily than several small, on-site mitigation projects

• mitigation banking is still experimental in nature
• requires coordination of involved parties to establish mitigation banking credit system
• requires substantial "up-front" investment
• results in net loss of wetlands if mitigation sites fail to function ecologically
• results in substantial economic loss if mitigation sites fail to function ecologically

To increase the likelihood of adoption and success, wetland mitigation banks should:

• address planning in a watershed context
• address acreage replacement ratios
• address ecological sustainability
• specify monitoring criteria based on performance standards
• specify a contingency plan
• provide adequate funding source and funding mechanism

The statewide protocol should include:

1. Criteria for Memorandums of Agreement (MOAs) that can be used by all parties when establishing a mitigation bank.

2. Site selection criteria based on ecological indicators and watershed processes, uses, and constraints.

3. Guidance for implementation, monitoring, and maintenance of mitigation bank sites.

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