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HBA OF GREATER C INCINNATI WATERS OF THE U.S.COMPENSATORY MIT IGATIONOCTOBER 6 , 2015
Vince Messe r l y , PE Pres iden tv m e s s e r l y @ s t r e a m a n d w e t l a n d s .o r g( 7 4 0 ) 6 5 4 - 4 0 1 6 o ffi c e( 7 4 0 ) 5 0 3 - 0 1 7 7 m o b i l e
Established in 1992 as a not-for-profit under section 501(c)(3) of the IRS code by leader of the OHBA
Original name was Ohio Wetlands Foundation. Name changed to Stream + Wetlands Foundation in April 2015.
First mitigation bank sponsor in Ohio and one of the first in the United States
Developers of 12 wetlands mitigation banks including: Hebron (1992), Big Island (1994), Sandy Ridge (1997), Slate Run (1998), Three Eagles (1998), Trumbull Creek 1 & 2 (2002 & 2008), Pearson (2008), Pine Brook (2009), Big Darby Hellbranch (2009), Granger (2012), Northeast Cape Fear (2014)
STREAM + WETLANDS FOUNDATION HISTORY
STREAM + WETLANDS FOUNDATION HISTORY
First approved In-Lieu- Fee Sponsor in Ohio. Includes portion of Huntington Corps District and entire Pittsburgh Corps District
Will provide turn-key, fixed cost, permittee responsible mitigation project(s) for applicants in areas not served by mitigation banks or In-Lieu-Fee sponsors.
Actively involved with numerous trade associations, watershed groups and rule making process at state and national levels.
2008 Federal Rule for “Compensatory Mitigation for Losses of Aquatic Resources” (33 CFR Part 325 and 332) covers impacts to streams and wetlands.
Can be downloaded at: http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_04_10_wetlands_wetlands_mitigation_final_rule_4_10_08.pdf
Issued in Federal Register April 10, 2008; became effective on June 9, 2008.
FEDERAL MITIGATION RULE
FEDERAL RULE (33 CFR PART 332.3 (B))OHIO (ORC 6111.30(10)(I))
1. Mitigation Bank
2. In-Lieu-Fee Program
3. Permittee-Responsible Mitigation
MITIGATION HIERARCHY
OHIO LAWS AND REGULATIONS
Ohio Revised Code 6111: http://codes.ohio.gov/orc/6111 Note: Senate Bill 294 in 2012 changed mitigation sequence to match more closely to Federal regulations (see ORC 6111.30(I))
Ohio Administrative Code 3745-1-54: http://codes.ohio.gov/oac/3745-1-54
WHY ARE MITIGATION BANKS PREFERRED? (CFR 332.2)
Mitigation project completed in advance of impacts
More rigorous scientific and technical analysis and planning
Larger, more ecologically valuable sites
Credits released as goals are met so risk of failure minimal
Agency resources are limited for review and compliance
Cost effective for agencies and applicants
Mitigation responsibility is transferred from applicant to sponsor once
payment is complete
WHAT IS IN-LIEU FEE MITIGATION?
Program sponsor must be a natural resource based state or local agency or a natural resource based non-profit organization.
Like banks, mitigation responsibility is transferred from applicant to sponsor once payment is complete.
Typically, mitigation funds are collected by sponsor prior to securing, designing and constructing mitigation projects. The sponsor is taking risk on determining cost of “advance credits”
Sponsor has 3-years to start implementation of mitigation plan
MORE ABOUT IN-LIEU FEE MITIGATION
“Advanced credits” are credits that have been released by the IRT for sale to applicants but have not been constructed
“Released credits” are credits that have been constructed and have met interim performance goals and have been released for sale by the IRT.
“Fulfilled credits” are advanced credits that have been sold and have been offset with released credits. Once an advance credit is deemed “fulfilled” the IRT can release additional advanced credits.
Released credits in excess of the amount of advanced credits sold, are considered equivalent to bank credits.
PERMITTEE RESPONSIBLE MITIGATION
Mitigation projects that are completed by the applicant
and the applicant retains responsibility until agency sign
off
Includes the design, construction, maintenance,
monitoring, long term protection and stewardship, etc.
Mitigation Hierarchy Depends on location, type, chance
for success, etc. Can be in-kind
Can be on-site or off-site
Threat to resource
Part of watershed plan
MITIGATION PLAN OR PROPOSAL
What do you do when the mitigation options do not fit the rules or you wish to deviate from the hierarchy?The applicant has to make their case based on criteria in the 2008 Mitigation Rule. Likelihood of success, watershed approach, environmentally preferred, in-kind replacement, and COSTS.
STREAM + WETLANDS FOUNDATION MIT IGAT ION BANK SERVICE AREAS
OTHER MIT IGATION BANK SERVICE AREAS
STREAM + WETLANDS IN-L IEU FEE SERVICE AREAS
OTHER IN-L IEU FEE SERVICE AREAS
BANK AND IN-L IEU FEE SERVICE AREAS COMBINED
MITIGATION BANK COSTS
Big Darby Hellbranch Bank
Stream & Wetlands Foundation Sponsor• $45,000 per acre of wetland credit• Can use for level 1 isolated permits (cat 1 and 2
wetlands) and all category 1 isolated impacts
Great Miami Mitigation Bank
Fiver River Metro Parks Sponsor
• $50,000 per acre for of wetland credit
• $300 per foot for stream mitigation credit
Red Stone Farm Mitigation Bank
Private for-profit sponsor Drausin Wulsin
• $65,000 per acre of wetland credit
IN-LIEU FEE MITIGATION
Stream & Wetlands Foundation
• $45,000 per acre of wetland credit
• $230 per foot for stream credit (approval
anticipated in late 2015)
The Nature Conservancy
Lower Great Miami & Little Miami Rivers• $59,000 per acre of wetland credit• $270 per foot of stream credit
Middle Ohio-Laughery• $72,000 per acre of wetland credit• $450 per foot of stream credit
M I T I G AT I O N B A N K & I N - L I E U F E E C O S T I N G R E AT E R C I N C I N N AT I
Waters of the United States (WOTUS) – issued in the Federal Register on June 29, 2015, EPA and the Corps. It is actually a definition. http://www.gpo.gov/fdsys/pkg/FR-2015-06-29/pdf/2015-13435.pdf
•Corps and EPA pursued rule for several years in order to clarify previous WOTUS definition
•The Supreme Court in its rulings for SWANCC (2001) and Rapanos-Carabell (2006) encouraged the agencies to implement more clear regulations.
Numerous entities including many states (Ohio) and the NAHB filed suit against EPA and the Corps at both the District Court and Court of Appeals levels.
The rule became effective on August 28, but only in 37 states as it was enjoined in 13 states by the North Dakota District Court.
Preamble provides insight into the “definition” of WOTUS. The preamble is 49 pages long while the “definition” of WOTUS is just 2 pages long.
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
The final rule subjects the vast majority of the nation’s water features to the “significant nexus test” which has proven to be vague and not applied consistently across the country.
Waters that are jurisdictional
(1) traditional navigable waters (TNW)
(2) interstate waters
(3) territorial seas
(4) impoundments of (1)‐(3) waters
(5) tributaries
(6) adjacent waters
Waters identified in items 1 through 4 are consistent with existing regulations and guidance.
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
•The definition of tributary captures all perennial, intermittent, and ephemeral streams that have a bed, bank and ordinary high water mark (OHWM).
•The final rule preamble provides numerous options for identifying an OHWM, or an historic OHWM, from a computer or desktop (i.e., no field verification necessary).
•Reliance on the OHWM concept is very problematic, as even the Army Corps of Engineers acknowledges the term is ambiguous and is applied inconsistently (especially for ephemeral streams and streams in arid parts of the U.S.)
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
Adjacent waters: The definition includes all headwaters of items 1 through 5 and all streams that connect segments of these waters. The definition of also includes all “neighboring” waters, the definition of which has been revised since the proposed rule. “Neighboring” waters include:
‐ All waters located within 100 feet of the OHWM of waters in 1-5;
‐ All waters located within the 100‐year floodplain of a 1-5 water, but not more than 1,500 feet from the OHWM of said water; and
All waters located within 1,500 feet of the high tide line of a waters 1 through 3
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
Adjacent waters: The definition includes all headwaters of items 1 through 5 and all streams that connect segments of these waters. The definition of also includes all “neighboring” waters, the definition of which has been revised since the proposed rule. “Neighboring” waters include:
‐ All waters located within 100 feet of the OHWM of waters in 1-5;
‐ All waters located within the 100‐year floodplain of a 1-5 water, but not more than 1,500 feet from the OHWM of said water; and
All waters located within 1,500 feet of the high tide line of a waters 1 through 3
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
• In response to SWANCC ruling, Ohio legislature passed “isolated” wetland laws in 2001. These laws are found in Chapter 6111 of the ORC.
• 24 of the 50 states provide some form of isolated wetland protection
• Ohio likely has the most robust isolated wetland laws in the U.S.
• Ohio Isolated Wetland Laws have specific timeline requirements for Ohio EPA permit review and approval/denial
Level 1 permit for impacts to Cat 1 and 2 wetlands of ½ acre or less. Permit issued or denied in 30 days from completed application.
Level 2 permit for impacts to Cat 1 greater than ½ acre or to Cat 2 greater than ½ acre and less than 3 acres. Permit to be issued or denied in 90 days.
Level 3 permit for impacts to any Cat 3 wetland and to Cat 2 wetlands greater than 3 acres. Permit to be issued or denied in 180 days.
OHIO ISOLATED WETLAND LAWS – ORC 6111
How will this affect landowners in Ohio?
Will have the most effect on development sites located within floodplains
Longer permit review times since Corps does not have clear permit processing timelines (as found in ORC 6111 for Ohio EPA)
Mitigation options for WOTUS not as flexible as ORC 6111 mitigation options
Ohio may want to pursue possible assumption of the 404 program
WATERS OF THE UNITED STATES DEF IN IT ION (WOTUS)
EO 13690 – A New Federal Flood Risk Management Standard (January 2015)
On Jan. 30, President Obama signed Executive Order (EO) 13690 to update
Executive Order 11988 of May 24, 1977 on Floodplain Management. EO 11988 required federal agencies to avoid, to the extent possible, adverse impacts associated with occupancy and modification of floodplains and to avoid support of floodplain development wherever an alternative
exists. The new EO is part of the national policy to improve climate resiliency as
directed by the President’s Climate Action Plan
. It creates a new Federal Flood Risk Management Standard (FFRMS) for all federally approved or funded projects. Since 1977, the term “floodplain” has meant that areas subject to a 1%-or-greater chance of flooding in any given year – the 100-year storm event. Now, federal agencies will have three options for establishing the new FFRMS elevation and flood hazard area:
Climate-informed Science Approach – Using the best-available data and methods
that integrate current and future changes in flooding.
Freeboard Value Approach – Adding an additional 2 or 3 feet of freeboard to the base
flood elevation of the 100-year flood.
500-year Elevation Approach – The area subject to flooding by the 0.2%-annual-
chance flood.
The EO requires each federal agency to incorporate the new floodplain definition and
flood-risk reduction strategies into their existing programs and regulations. The
Corps has said this will not change the 100-year floodplain used in WOTUS.
Despite claims by the Administration that the new floodplain standards apply only to
“federal projects and investments,” NAHB is concerned that the scope could be
much broader and impose unnecessary regulatory requirements and additional red
tape for home building, home financing, home sales, and land development along
the Nation’s coasts, rivers, streams, lakes and ponds.
NEW FEDERAL FLOOD R ISK MANAGEMENT STANDARD
ARMY CORPS’ NATIONAL WETLAND PLANT L IST (NWPL)
Plants, along with soils and hydrology, are used to delineate wetlands. The Corps assigns each plant an indicator status that it uses to designate the likelihood of that plant occurring in wetlands or uplands:
OBL Obligate Wetland Plants - Almost always occur in wetlands. FACW Facultative Wetland Plants - Usually occur in wetlands, but may occur in non-wetlands. FAC Facultative Plants - Occur in wetlands and non-wetlands. FACU Facultative Upland Plants - Usually occur in non-wetlands, but may occur in wetlands.
UPL Upland Plants - Almost never occur in wetlands.
NWPL IS GET T ING WET TER . . .
• First published in 1988
• Updated in 1996, 2012, 2013, and
2014, each time becoming “wetter”
• Corps removed all “+” and “-” from
nomenclature in Regional
Supplements in 2010 through 2012
2012 NWPL Region
1988 2012 Species Changes from
Upland (UPL or FACU) to Wetland
(OBL, FACW, or FAC)
1988 2012 Species Changes from
Wetland (OBL, FACW, or FAC) to Upland (UPL or FACU)
EMP 264 15AW 247 28AGCP 398 21WMVC 347 27GP 604 22NCNE 328 7MW 407 22
USACE 1987 MANUAL FOR WETLAND DELINEATIONSREG IONAL S UPPLEMENTS
FEDERAL REGISTER ANNOUNCEMENT
• 9/14/15 – To update the NWPL, the Corps announced the availability of the draft 2015 NWPL and a web address to solicit public comments.
• The public will be provided 60 days comment and vote on the proposed update of wetland indicator status ratings for 186 plants species in select Corps wetland regions.
• Comments due 11/13/15
INSTRUCTIONS FOR PROVIDING COMMENTS ONLINE
• Corps is requesting assistance (e.g., data, literature, field experiences) to help clarify the status of the 186 species in the 2015 NWPL update
• A list of species by region and the details of how their rating was evaluated by Regional and National Panel members can be viewed at the NWPL homepage
• Commenters will be directed to an online form for submitting comments
• Guessing ratings is inappropriate.
• Commenters can also submit general comments on the 2015 NWPL update that are not related to a specific species
QUESTIONS?
