Environmental process | Environmental review | Wetlands
Wetlands process
Introduction
Wetland regulations require the need to address wetland impacts in the environmental assessment and documentation phase. The purpose of these regulations and guidelines is to protect aquatic resources (including wetlands) while allowing reasonable development through fair, flexible, and balanced permit decisions.
Wetlands are a subset of a larger resource category called “aquatic resources.” Aquatic resources also include surface water features and water bodies that do not meet the wetland definition (i.e., lakes, ponds, rivers, streams, channels, and public ditches). To complicate matters, wetlands are sometimes located on the edges or fringes of the above-mentioned surface water features or water bodies. Identify and label wetlands located on the fringes of other aquatic features and quantify them separately from the aquatic features that they touch.
According to 40 CFR §230.3 (t), wetlands are “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” According to this regulation, there are three criteria that must be present for an area to be a wetland in a regulatory sense:
- Hydrology
- Hydric soils
- Hydrophytic vegetation
Due to their dependence on hydrology, wetlands are closely aligned with water resources. They can be located on the fringes of streams, rivers, and lakes, and therefore projects that affect wetlands may also affect these waters and vice versa.
Purpose
The purpose of this wetland guidance is to:
- Help prepare a robust wetland section for the environmental document
- Help manage expectations regarding the project timeline
- Promote the assembly of the basic required information for the various permit applications
- Because permit applications require more details and specifics than environmental documents do, it is prudent to anticipate permit applications and assemble information for them when it is available
This guidance describes:
- Documenting the avoidance and minimization of the direct or indirect loss of wetlands for an alternative that achieves no net loss of wetland quantity or quality
- Developing a wetland sequencing discussion to use in the wetland permit applications
- Developing supporting information and rationale for the preferred alternative being the least environmentally damaging alternative (LEDPA)
Wetland inventory
Because the presence of the three criteria above assigns wetland status to an area, it is important to identify all such areas as wetlands whether they are manmade, artificial, or natural. Identify areas of hydrophytic vegetation in the bottom of roadway ditches that were excavated in uplands as “wet ditches” and quantify them separately from natural wetlands.
The inventory of wetland resources (including other aquatic features) is important because it forms the basis for all subsequent steps in documentation and permitting. The level of wetland inventory and assessment is dependent on the magnitude and timetable of the project.
The Office of Environmental Stewardship (OES) recommends a two-step approach for large-scale projects with a range of alignment and/or corridor alternatives. District Hydraulics first inventories these wetlands using a Level 1 wetland delineation and then inventories them again later in project development using a Level 2 wetland delineation. In these cases, regulatory entities should review and approve the wetland delineation report during the selection of the preferred alternative or corridor.
For small-scale projects with short timelines, OES recommends a one-step approach. The one-step approach inventories wetlands once using the appropriate level of wetland delineation. For this approach, submit the wetland delineation and the permit application for review in tandem to US Army Corps of Engineers (USACE) and OES.
Level 1 wetland delineation
A Level 1 wetland delineation is essentially an offsite mapping exercise where someone analyzes a variety of mapped information to identify the presence or absence of wetlands in the project area. The Minnesota Board of Water and Soil Resources (BWSR) provides guidance for Offsite Hydrology and Wetland Determinations on their website.
Even though a Level 1 wetland delineation is defined strictly as an offsite exercise, OES recommends conducting a field review of the areas. If there is a field review, make sure to note that in the project documentation.
When using a two-step approach, a Level 1 wetland delineation is appropriate early in project development and/or as a precursor for a subsequent Level 2 wetland delineation. The information in the Level 1 wetland delineation should be adequate for comparing the potential wetland impacts of the various location alternatives.
The identification of the wetland boundary is not relevant when:
- The activity incurring the wetland impact is surrounded by wetland, making the location of the wetland edge immaterial (e.g., replacement of a culvert in a location where the wetland borders the roadway and surrounds the end of the culvert)
- The wetland impacts are expected to be temporary
- USACE indicates that a Level 1 wetland delineation is sufficient
Because the confluence of the three wetland criteria in the bottoms of ditches may confer wetland status on an area from a regulatory perspective, field review project areas for “wet ditches” regardless of the results of a Level 1 wetland delineation (i.e., even in cases where the Level 1 wetland delineation shows that no mapped wetlands are present).
Level 2 wetland delineation
Level 2 wetland delineations are typically a requirement of wetland permit applications. Use the Level 2 wetland delineation to determine the wetland impacts associated with analysis of avoidance and minimization measures. Submit Level 2 wetland delineations to the USACE for approval as part of the permit application. For large projects that have extended timelines, you can request USACE approval of the Level 2 wetland delineation separately from, and prior to, the permit application development.
Level 3 wetland delineation
A Level 3 wetland delineation is merely the term for using a combination of Level 1 and Level 2 wetland delineations on one project (i.e., conducting a Level 1 for some wetlands and a Level 2 for others).
Threshold criteria
If a proposed project has the potential to impact any measurable amount of wetland, the environmental document must address the anticipated impacts. Wetland impacts can be permanent or temporary and include fill (i.e., conversion of wetland to non-wetland), excavation (to a depth greater than two meters), and conversion of wetland type (either through draining or permanently altering vegetation.
Statements of no effect
No wetlands
If the results of a Level 1 wetland delineation indicate that there are no wetlands within the project area, include the following statement in the environmental document:
A level 1 wetland delineation indicates that the project area does not contain any wetland resources.
Unaffected wetlands outside construction limits
If the results of a Level 1 wetland delineation indicate that wetlands are present within the project area but are outside the proposed construction limits, include the following statement in the environmental document:
A Level 1 wetland delineation indicates that wetlands are present within the roadway right of way, however, the activities of the proposed project will not affect these areas.
This statement is for cases where wetlands are adjacent to a highway corridor but the project consists of discreet activities that will not occur in the vicinity of the wetlands. OES recommends specifying the types of activities and their location in the project documentation to support the assertion that the project will not actually affect the wetlands. Attaching a map of the project area showing the location of the proposed activities relative to the wetlands in the project corridor is the best way to support the statement.
Statements of effect
If a wetland inventory suggests that the proposed project may affect wetlands, address the impacts in the project documentation via a wetland assessment. Include the following statement in the environmental document to acknowledge that you have accomplished the first two steps in the sequencing process (avoidance and mitigation):
Based upon the above factors and considerations, it is determined that there is no practicable alternative to the proposed construction in the identified wetlands and that the proposed action includes all practicable measures to minimize harm to the wetlands.
Considerations for environmental document preparation
Incorporate all wetland mitigation commitments into the environmental document during final design. If a project is delayed from the original schedule or if the scope of the project and its design elements change, there may be new wetland impacts. If more than five years have elapsed since the date of the last wetland field review, revisit the wetlands in the field to ensure that expected impacts are still accurate and convey that information to OES.
Class I Actions (Environmental Impact Statement (EIS) Projects)
If you do not anticipate any wetland impacts, use whichever one of the following statements is appropriate in the EIS.
A level 1 wetland delineation indicates that the project area does not contain any wetland resources.
Or
A Level 1 wetland delineation indicates that wetlands are present within the roadway right of way, however, the activities of the proposed project will not affect these areas.
Scoping Document (SD) and Scoping Decision Document (SDD)
Conduct an early assessment of the magnitude of potential wetland impacts and assess the need for further study.
Draft EIS (DEIS)
Perform the following for a DEIS:
- Conduct an inventory of wetland resources (Level 1 wetland delineation is the preferred method)
- Develop a wetland assessment, which should include the project purpose and need and identify location alternatives, avoidance, and minimization measures
- Identify the wetland replacement strategy (e.g., use wetland banking)
- Conduct early inter-agency coordination with USACE and the Wetland Conservation Act (WCA) Technical Evaluation Panel (TEP) as appropriate
Public hearing
Include wetland information at the public hearing as 23 CFR §777 requires.
Draft Final EIS (Draft FEIS)
Perform the following for the draft FEIS:
- Conduct a more comprehensive inventory of wetland resources using a Level 2 or Level 3 wetland delineation
- Identify any changes in wetland impacts or sequencing measures
- If the scope changed or more than five years have elapsed since the previous coordination, then:
- Conduct follow-up interagency coordination
- Conduct a reevaluation of the wetland delineation (wetland delineation approvals are only good for five years)
FEIS
Include a summary statement with an explanation of why the preferred alternative is the LEDPA and identify a wetland replacement strategy (e.g., using wetland banking).
Record of Decision (ROD)
In the ROD:
- Include a summary statement explaining why the preferred alternative is the LEDPA
- Include a summary statement on the wetland impacts and wetland replacement measures
Class II Actions (Categorical Exclusion (CATEX) Projects
If you do not anticipate any wetland impacts, use whichever one of the following statements is appropriate in the CATEX.
A level 1 wetland delineation indicates that the project area does not contain any wetland resources.
Or
A Level 1 wetland delineation indicates that wetlands are present within the roadway right of way, however, the activities of the proposed project will not affect these areas.
Perform the following steps:
- Conduct an inventory of wetland resources (use a Level 1, 2, or 3 wetland delineation as appropriate)
- Develop the wetland assessment that includes the purpose and need and identifies location alternatives and avoidance and minimization measures
- Identify a wetland replacement strategy (e.g., use wetland banking)
- Conduct early interagency coordination with USACE and WCA TEP members as appropriate:
- Coordinate projects with a greater wetland impact potential on a case-by-case basis
- Discuss small projects at an annual meeting
- Conduct follow-up interagency coordination if the project scope changes or more than five years elapsed since the previous coordination
Class III Actions (Environmental Assessment (EA) Projects)
If you do not anticipate any wetland impacts, use whichever one of the following statements is appropriate in the EA.
A level 1 wetland delineation indicates that the project area does not contain any wetland resources.
Or
A Level 1 wetland delineation indicates that wetlands are present within the roadway right of way, however, the activities of the proposed project will not affect these areas.
Perform the following steps:
- Conduct an inventory of wetland resources (use a Level 1, 2, or 3 wetland delineation as appropriate)
- Develop the wetland assessment that includes the purpose and need and identifies location alternatives and avoidance and minimization measures
- Identify a wetland replacement strategy (e.g., use wetland banking)
- Conduct early interagency coordination with USACE and WCA TEP members as appropriate:
- Coordinate projects with a greater wetland impact potential on a case-by-case basis
- Discuss small projects at an annual meeting
- Conduct follow-up interagency coordination if the project scope changes or more than five years elapsed since the previous coordination
- Include a summary of the wetland issues in the Finding of No Significant Impact (FONSI)
Agency involvement
Projects that involve wetlands require coordination with regulatory agencies. The extent of that coordination can vary and may involve pre-application meetings early in project development, submittal of a finalized project document, or formal correspondence. The type and timing of coordination depends on the magnitude of the wetland impact and agency interest. Contact OES to help you determine the appropriate level of coordination your project involves.
If more than five years have elapsed since the last interagency meeting, consider convening an update meeting. If there have not been any changes to the anticipated impacts or proposed replacement measures, notify all involved parties that there have been no changes.
USACE
The USACE has jurisdiction over and issues Section 404 permits for non-exempt discharges of dredged or fill material into waters of the United States, including jurisdictional wetlands.
USFWS and United States Forest Service (USFS)
The USFWS and the USFS have authority over wetlands on lands that they administer. If the project will impact wetlands on federal lands (e.g., wildlife and waterfowl refuges or national forests), coordinate with the appropriate federal agency. The USFWS and USFS review and comment on a project’s environmental documentation for projects that are affecting wetlands.
Minnesota Department of Natural Resources (MNDNR)
According to Minnesota Statutes, section 103G.005, the MNDNR has jurisdiction over and issues permits for “public waters and public waters wetlands.” The MNDNR”s map of public waters and wetlands (PWI) for each county in Minnesota identifies the public waters in that area.
Minnesota Pollution Control Agency (MPCA)
The MPCA has delegation of authority under Section 401 of the Clean Water Act (CWA).
Local Government Units (LGUs)
The WCA covers all wetlands that are not public water wetlands.
LGUs implement the WCA with oversight from the BWSR. MnDOT is its own LGU on lands that it administers, including areas under temporary easement during construction.
Although the MNDNR does not overlap the WCA, the DNR can waive its wetland jurisdiction to the LGUs.
Watershed districts
The watershed districts have jurisdiction over the water resources within their boundaries through legislative authority according to Minnesota Statutes, section 103D.345, subdivision 5 and Minnesota Rules, part 8420.0200. Watershed districts in the metro area have a WCA LGU role for non-state project applicants with their boundaries through Minnesota Rules, part 8420, but they do not have WCA authority over state agency activities.
MnDOT responsibilities
As project applicants, the MnDOT districts and Central Office specialty groups are responsible for submitting joint applications to the appropriate permitting agencies (USACE, MNDNR, MPCA, and watershed districts). Since the OES fulfills the WCA LGU responsibilities for MnDOT, send OES copies of the joint applications that are submitted to the permitting agencies. In its role as WCA LGU, OES distributes Notices of Application, Notices of Decision, and Public Road Project Notifications to the WCA TEP (BWSR, County SWCD, MN DNR WCA contact, and local LGU). The MnDOT Chief Environmental Officer is the signatory for WCA decisions regarding replacements plans, and bank plans. The Wetland Program Coordinator in OES signs all other WCA decisions (exemptions, no loss, wetland boundary and type, and sequencing) and consults with the USA CE liaison to determine wetland replacement options.
Permits and approvals
Section 404 permit
The Saint Paul District of the USACE issues the Section 404 permit. There is a joint application form for activities affecting water resources in Minnesota. Use this form, but discard pages 1, 2, 9, 10, and 11 before submitting it.
Public Waters Work Permit Program Permit
The MNDNR issues the Public Waters Work Permit Program Permit. Go to MnDNR Permitting and Reporting System (MPARS) for online permitting.
WCA approval or WCA notification
MNDOT OES issues the WCA approval or notification as the LGU for activities on its right of way. Use the joint application form request approval or notification.