wetland permitting in wa by francis naglich

Status of Wetland Permitting in Washington State:

An Applicant’s Perspective

Francis Naglich, Principal

Ecological Land Services, Inc.

Permitting in Washington State Permitting in Washington State BackgroundBackground

Wetlands Regulatory Framework: Wetlands Regulatory Framework: ● Federal – USACE and EPAFederal – USACE and EPA● State – Department of EcologyState – Department of Ecology● Local – County or CityLocal – County or City● Other – Shorelines, Hydraulic Permits, Other – Shorelines, Hydraulic Permits,

FEMA Floodplain FEMA Floodplain


● Status of the Science:Status of the Science:● Wetland Categories I - IV Wetland Categories I - IV ● Best Available Science (BAS)Best Available Science (BAS)● Wetland BuffersWetland Buffers● Replacement RatiosReplacement Ratios

* Category and Land Use Intensity and * Category and Land Use Intensity and Mitigation Approach = Ratio Mitigation Approach = Ratio* Washington functional Assessment * Washington functional Assessment

Methodology Methodology* Credit – Debit Method (Focus on * Credit – Debit Method (Focus on Function) Function)


● Mitigation ApproachesMitigation Approaches● Sequencing – Avoidance, Minimization…Sequencing – Avoidance, Minimization…● Applicant Sponsored: Concurrent – In-KindApplicant Sponsored: Concurrent – In-Kind● Third Party Provider: Mitigation Bank, In-lieu Third Party Provider: Mitigation Bank, In-lieu

Fee Fee ● Consolidated Mitigation SiteConsolidated Mitigation Site● Advanced MitigationAdvanced Mitigation● Maintenance/MonitoringMaintenance/Monitoring● Long Term Site ProtectionLong Term Site Protection

ChallengesChallenges

Challenges: Inconsistency Between Regulations and Challenges: Inconsistency Between Regulations and Agencies Agencies

1.1. JurisdictionJurisdiction

Some Wetlands are “isolated” per Corps, but Some Wetlands are “isolated” per Corps, but the process for determinations is unpredictablethe process for determinations is unpredictable

EPA has veto/challenge authority on such callsEPA has veto/challenge authority on such calls

Department of Ecology and local agencies still Department of Ecology and local agencies still have jurisdiction over isolated wetlandshave jurisdiction over isolated wetlands

Challenges: Inconsistency Between Regulations Challenges: Inconsistency Between Regulations and Agencies and Agencies

2.2. Avoidance CriteriaAvoidance Criteria

Non water-dependant projects may require Non water-dependant projects may require rigorous alternatives analysis to acquire Corps rigorous alternatives analysis to acquire Corps permitpermit

Criteria more relaxed at local and state levelCriteria more relaxed at local and state level

Challenges: Inconsistency Between Challenges: Inconsistency Between Regulations and Agencies Regulations and Agencies

3.3. Buffer WidthsBuffer Widths Example: Recent ELS projectExample: Recent ELS project

City of Camas buffer requirementsCity of Camas buffer requirements for a Category 2 for a Category 2 wetland with low habitat function and proposed high-wetland with low habitat function and proposed high-intensity land-use: intensity land-use: Original buffer width: 100 feetOriginal buffer width: 100 feet Allowed reduction of buffer width to 56.25 feetAllowed reduction of buffer width to 56.25 feet

DOE / USACE buffer requirementsDOE / USACE buffer requirements for a Category 2 for a Category 2 wetland with low habitat function and proposed high-wetland with low habitat function and proposed high-intensity land-use: intensity land-use: Required a buffer of 100 feetRequired a buffer of 100 feet Allowed reduction of buffer width to 75 feetAllowed reduction of buffer width to 75 feet

ESA & Cultural ResourcesESA & Cultural Resources

Issues must be resolved for any federal Issues must be resolved for any federal actionaction

Example: Corps permit, FEMA project, or Example: Corps permit, FEMA project, or any project with federal funds attachedany project with federal funds attached

Don’t Forget…Don’t Forget…

Washington Department of Fish & Wildlife,Washington Department of Fish & Wildlife,

through Hydraulic Project Application (HPA),through Hydraulic Project Application (HPA),

may take the same or additional jurisdictionmay take the same or additional jurisdiction

depending on the impact.depending on the impact.

OtherOther Buyer Beware! Buyer Beware!

Cumulative ImpactsCumulative Impacts

Permit Timing Permit Timing Section 404 Section 404

Nationwide Permit = 3-9 monthsNationwide Permit = 3-9 monthsIndividual Permit = 1-2 years or moreIndividual Permit = 1-2 years or more

Shorelines, Floodplain, NPDES, SWPPPShorelines, Floodplain, NPDES, SWPPP May be additional, overlapping, or even conflicting May be additional, overlapping, or even conflicting

regulationsregulations

High Mitigation Ratios for Wetland PreservationHigh Mitigation Ratios for Wetland Preservation

Permitting Hill Climb

Solutions/OpportunitiesSolutions/Opportunities

1. 1. Early Agency InvolvementEarly Agency Involvement Pre-Application Meeting – On-site if possible, at a minimum by Pre-Application Meeting – On-site if possible, at a minimum by

conference callconference call

Applicant: Have a good plan, be flexible, know your bottom lineApplicant: Have a good plan, be flexible, know your bottom line

Agency: Identify impacts and mitigation, chart the path to the permitAgency: Identify impacts and mitigation, chart the path to the permit

Invite and include, where possible all stakeholders. Invite and include, where possible all stakeholders. Example: Tribes, Watershed Councils, Community GroupsExample: Tribes, Watershed Councils, Community Groups

Avoid: The “US and Them” SyndromeAvoid: The “US and Them” Syndrome

2.2. Realistic Expectations for Applicants/AgenciesRealistic Expectations for Applicants/Agencies

Understanding where the project crosses the Understanding where the project crosses the “point of fill / no-fill”“point of fill / no-fill”

Wetland Fill site Wetland Fill site Avoidance - No Fill Avoidance - No Fill

What information is needed? Once submitted, how long to review and make a What information is needed? Once submitted, how long to review and make a decision? Avoid “moving targets”.decision? Avoid “moving targets”.

Identify acceptable mitigation options. Avoid “back and forth, and crapshoot Identify acceptable mitigation options. Avoid “back and forth, and crapshoot approaches”approaches”

Beware of on-site mitigation limitations.Beware of on-site mitigation limitations. Beware of unintended consequences. Beware of unintended consequences.

Example: The disappearing oaks of Clark CountyExample: The disappearing oaks of Clark County

3. 3. Mitigation StrategiesMitigation Strategies

Wetland Mitigation BankingWetland Mitigation Banking In-Lieu FeesIn-Lieu Fees Applicant-Sponsored MitigationApplicant-Sponsored Mitigation Other Mitigation StrategiesOther Mitigation Strategies

* * Consolidated MitigationConsolidated Mitigation

* Advanced Mitigation* Advanced Mitigation

* Programmatic Mitigation* Programmatic Mitigation

Example: Regional General Permit Example: Regional General Permit (RGP)(RGP)

On-Going Dialogue with Corps, Department On-Going Dialogue with Corps, Department of Ecology, and Local Agencyof Ecology, and Local Agency

Alternatives Analysis ProcessAlternatives Analysis Process Identifying Impacts and Potential for Advanced Identifying Impacts and Potential for Advanced

Mitigation Strategies, Banking, and In-lieu Fees, Mitigation Strategies, Banking, and In-lieu Fees, Consolidated and ProgrammaticConsolidated and Programmatic

Creating Incentives for Wetland PreservationCreating Incentives for Wetland Preservation

Example: “String of Pearls”Example: “String of Pearls”

Integrating Stormwater Integrating Stormwater Management with Enhancement of Management with Enhancement of

Low-Quality WetlandsLow-Quality Wetlands

Low-quality Pasture WetlandLow-quality Pasture Wetland Enhanced WetlandEnhanced Wetland

Programmatic and Advance MitigationProgrammatic and Advance Mitigation

Port of Chehalis Port of Chehalis A Groundbreaking OpportunityA Groundbreaking Opportunity

Traditional Piece-Meal PermittingTraditional Piece-Meal Permitting

TimeTimeProject UncertaintyProject Uncertainty

Client Perceives Increased RiskClient Perceives Increased Risk

Client Loses Time and ProfitsClient Loses Time and Profits

Client is Distracted by Other OptionsClient is Distracted by Other Options

Port Loses Interested Port Loses Interested ClientClient

START

Client Client isis

ReadyReady

Local Permitting Process

State & Federal

Permitting

Process

Land Land

is is

ReadyReady

FINISH

Advance Advance MITIGATIONMITIGATION Round Table Round Table DiscussionDiscussion

WDFW

Senator Dan Swecker

Provide Certainty to ClientsProvide Certainty to Clients Address Permitting Issues with ConsistencyAddress Permitting Issues with Consistency Invite Regulators to RegulateInvite Regulators to Regulate

Discussion: Port’s ConcernsDiscussion: Port’s Concerns

Permitting Without a Specific ProjectPermitting Without a Specific Project Zero Net-Loss of WetlandsZero Net-Loss of Wetlands Agreeing to a Development without Agreeing to a Development without

Advanced Certainty of ReplacementAdvanced Certainty of Replacement

Wetland QualityWetland Quality

Discussion: Agency ConcernsDiscussion: Agency Concerns

Opens 125 AcresOpens 125 Acres for Developmentfor Development

Expect 750 New JobsExpect 750 New Jobs at at Complete Build-OutComplete Build-Out

Certainty for ClientsCertainty for Clients Looking for Timely DevelopmentLooking for Timely Development

Advance Mitigation Advance Mitigation Benefits to PortBenefits to Port

One Mitigation Site One Mitigation Site for Multiple Projectsfor Multiple Projects

Improved Survival Improved Survival of the Mitigation of the Mitigation

ProjectProject

Agency Access Agency Access for Monitoringfor Monitoring

Advance Mitigation Advance Mitigation Benefits to AgenciesBenefits to Agencies

One Mitigation ProjectOne Mitigation Project IIncreased Survival Ratencreased Survival Rate

Groundbreaking ProcessGroundbreaking Process that Could be Used as a Standard that Could be Used as a Standard Mitigation Approach for PortsMitigation Approach for Ports

True Symbiotic PartnershipTrue Symbiotic Partnership of Government Agenciesof Government Agencies

Timely Economic Boost Timely Economic Boost to a Struggling Areato a Struggling Area

Advance Mitigation Advance Mitigation Benefits to AllBenefits to All

Advanced Programmatic Advanced Programmatic MitigationMitigation

Impact AreaImpact Area Proposed Mitigation AreaProposed Mitigation Area

Port of Chehalis ExamplePort of Chehalis Example

Wetland Creation SiteWetland Creation Site

Project UnderwayProject Underway

Contact InfoContact Info

Francis NaglichFrancis Naglich360-578-1371360-578-1371

1157 3rd Avenue, Suite 2201157 3rd Avenue, Suite 220

Longview, WA 98632Longview, WA 98632

wetland permitting in wa by francis naglich

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