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Guidance Clarification on Wetland Delineation

Let us show you how the new guidance could gain you valuable land for development.

November 2007

Nationwide Permits

November 13 , 2007 - Acoording to sources at DNREC we are very close to having sign off for the NWPs in Delaware.

July 16 , 2007 - The State of Delaware has made comments to the Corps of Engineers and is awaiting feedback before finalizing their decision on the 401 WQC and CZ Consistency waivers.

May 25, 2007 - It appears that the State sign off for 401 WQC and CZM will be delayed a bit longer while the State waits to review the Regional Conditions.

Email from Ed Bonner, COE explaining the decison:

This is a follow-up to our conference call this morning concerning the regional conditions for the new NWPs and their related WQC and CZM certifications.  As we discussed, May 11, 2007 is the deadline established by our HQ for the States to reach decisions with respect to the generic WQC and CZM certifications for the NWPs.  If the State has not issued or denied the necessary certifications by this date, a waiver of these certifications will be presumed by the Corps. Once a State has issued or waived these certifications, that certification will remain in place until the NWPs are re-authorized on or about March 2012.  However, if the State chooses to deny these certifications now, you will have the option, at any time , to change you decision and subsequently issue or waive.  We further recognize that the development and authorization of regional conditions for the NWPs within the State would be legitimate basis to re-visit your initial denial and subsequently issue/waive these certifications on a generic basis.  Normally, we would complete the regional conditioning process prior to the effective date of the new NWPs.  Unfortunately, in this particular instance, we were not able to do that.   Some of the issues you have raised can and are being addressed through the regional conditions.  Our goal is to complete the regional conditions within the States of NJ and DE within the next 30 - 60 days.  We will prepare and distribute a public notice when this is completed.

        During this initial 60 day period of the new NWPs all applicants, who have received NWP verification letters from our office, have been advised that they will need to submit to the State for an individual WQC and/or CZM approval prior to conducting the work.  As such, the State will then have the option of issuing, waiving, or denying the necessary certifications on an individual project basis.  Obviously, this requirement is moot for those projects that require a State Subaqueous Lands or Wetlands permit in addition to the Federal approval from our office.  Where a State permit is required, the WQC and CZM certifications required for the Federal authorization can be incorporated into the State authorization.  If the State chooses to deny the generic WQC and CZM on or before May 11, 2007, this current review process will continue.  If the State is satisfied with the eventual regional conditions that we hope to finalize in 30 - 60 days, you will have the option to subsequently issue or waive the generic WQC and CZM certifications.  At that point, applicants will no longer be required to obtain a project specific WQC and CZM approval from your office.

        Finally, I think the regional restrictions we discussed for NWP 29 will generally satisfy your concerns with respect to the activities authorized by this NWP.  As soon I have drafted some language for this NWP I will forward it to your office for review.  With respect to NWP 13, it is more complicated.  I understand your concerns that an individual property owner or project proponent will propose a bank stabilization measure with traditional stone materials or some other "hard" materials where a more thorough and planned stream restoration measure with innovative methods and materials would be more appropriate.  I further recognize that the science of stream restoration is growing.  To the extent that we can, we will attempt to address this issue.  However, it is imperative that you understand that we can not regionally condition an NWP to expand the nature or scope of work that could be authorized by the NWP.  We can only restrict an NWP; we can not expand it.  Again, as noted above, I hope to conclude this regional condition process within 30 - 60 days.

March 16, 2007 - The new Nationwide Permits were published on Monday March 12th. The new permits give a clue as to where the Corps Jurisdiction is going with regard to ditches and stormwater ponds. The new permits will be valid on March 19th but the State has not made a decision with regard to 401 Water Quality Certification and Coastal Zone Consistency. The State has 60 days from March 12th to make a decision on these approvals. Watch here for updates. Contact us to get a copy of the permits or a link to the Federal Register.

The COE will be posting the new Nationwide Permits in the Federal Register on Monday March 12th. Click here for the news release.

March 9, 2007 - The current Nationwide Permits are set to expire on March 19, 2007. If you have a project that is currently authorized under a Nationwide Permit or is in the works, please call for guidance.

The COE will be posting the new Nationwide Permits in the Federal Register on Monday March 12th. Click here for the news release.

Bald Eagle Status

March 20, 2007 - After a meeting with Craig Koppie of USFWS and Kitt Hecksher of DNREC, we have the following to report:

Below is a summary of the proposed regulations once the eagle is de-listed:

As of July 1 any project with a Section 7 already in place will be grandfathered in. It is still unknown at what stage a project must be in order for this to occur, prior to the delisting.  Right now if someone has a project it is uncertain at what stage they have to be in the planning process before they will be grandfathered in. We are expecting a phone call from Craig regarding a detailed answer on this.

Bald and Golden Eagle Buffer ranges

            0-330'- No permits will be granted for this area

            330-660'- Will have to get a incidental take permit to construct in this area

            660 + Unregulated

Nest abandonment

Historically USFWS would consider a nest abandoned if no nesting occurred for five consecutive years. More recently this was changed to three years. The USFWS will be looking at their recovery rates and will determine if this will remain at the three years or change back to the five years. It is more likely to remain at the three years.

It was also stated that even though a nest may be abandoned, if the nest remains in the tree it is preserved and can not be touched until the nest “blows out” . A buffer will be needed.

USFWS will coordinate with the property owner if an eagle builds more than one nest on a site in subsequent years if a permit was already granted for the initial nest. This will be by a case by case basis. It is likely that buffers will not be required around each nest.

Disturbance

There will be a general explanation of what disturb (take) really is. USFWS will also be giving examples of certain things that are allowed within buffer areas, these example will also help everyone better understand what a take or disturbance is.

Craig stated that they will be handing out applications for permits as of July 1. Due to lack of manpower and funding Craig is not able to guarantee USFWS will be able to review the permits or approve them until sometime at the end of the year at the earliest.

DNREC is unsure when they will have a decision made as to what their rules and regulations will be for the Bald eagle after June 29 th . Craig is pretty sure they will follow in the same path as USFWS, as do most states.  When asked, DNREC responded with….. “it will take a few weeks to months”.

Kit conducts flyovers December –July. Nesting locations are updated monthly. It is important for the client to submit periodic database searches in case a new nest, or an additional nest is found on the site. This will prevent complications down the line.

March 9, 2007 - The Bald Eagle is scheduled to be de-listed from the Endangered Species Act in June of 2007. The species will still be protected by the Bald and Golden Eagle Protection Act, please call for guidance.

JDs Coming Soon?

Update 6/07 - Guidance has been issued that clarifies that the COE regulates Traditional Navigable Waters (TNWs) and Relatively Permanent Waters. It also clarifies that the COE usually does not regulate erosional features and ditches excavated in uplands, draining only uplands that do not have a relatively permanent flow of water. In order to determine if other waters are regulated, a significant nexus test must be applied, contact JCM Environmental for more information.

Update 3/9/07 - Still no guidance but the COE is issuing a limited number of JDs. The word is that the COE will be issuing JDs for projects where permits are required before issuing JDs for projects with no impacts.

Update 2/5/07 - The rumor is that Congress is going to conduct wetland policy hearings on or around February 15, 2007 and that the White House wants the guidance released prior to that. Watch here for updates.

Update 12/8/06 - We have learned that the COE and EPA have issued guidance. This guidance is apparently at the Office of Management and Budget (OMB) for review and will be released soon. We estimate that the COE will begin issuing JDs soon. Watch here for updates.

Update 11/8/06 - It appears that the COE may be issuing JDs again shortly but without the benefit of guidance from Washington. It is unclear how these JDs will consider the NAHB settlement or the Rapanos case. Watch here for updates.

UPDATE 10/19/06 - It appears as though the guidance promised by the COE is not coming out anytime soon. The COE is still processing permits, they are just not issuing JDs. We have some strategies for dealing with this situation. Please call us for project specific advice.

July 5, 2006 - The COE announced today that it would be delaying Jurisdictional Determinations (JDs) for three (3) weeks while Headquarters evaluates the recent Supreme Court Decision.

From the memo...

In the meantime, in order to allow the Corps and EPA to prepare and issue substantive guidance, I am recommending that, to the extent circumstances allow, you delay making CWA jurisdictional determinations for areas beyond the limits of the traditional navigable waters (i.e., outside the “Section 10” waters) for the next three weeks.   Even though you should delay making CWA jurisdictional calls in areas outside the traditional navigable waters for the next three weeks, that does not mean that the processing and issuance of CWA permit authorizations in those areas using general permits and standard individual permits should be delayed, as is further explained below.

We will keep you up to date, please call if you need further clarification.

Ditch Rule Updates

11/8/06 - There is a rumor that the COE will continue regulating ditches as Waters of the United States even though the "Philadelphia Ditch Rule" has been withdrawn. The National Association of Homebuilders (a party to the lawsuit that had the TSD revoked) is asking for any information related to the continued regulation of ditches.

From: Desiderio, Duane [mailto:ddesiderio@nahb.com]
Sent: Wednesday, November 08, 2006 11:14 AM
To: Pickel, Mary Lynn; HBA/DE Steve Lefebvre
Cc: Asmus, Susan
Subject: RE: Philadelphia Ditch Rule and PCs

Steve, the quick answer is we would definitely be interested in getting further details on this matter.

The bottom line is that the Corps has agreed that the Ditch Rule “has no force and effect” as the basis for determining Clean Water Act jurisdiction.  This is the basis upon which we settled the case this past summer.  I am attaching a document filed by the Corps with the federal court in DC explaining that is the case.  Also, I am attaching an email that was sent to the Corps Philly District, as per our settlement, declaring that the Ditch Rule has “no force and effect.”

If you hear of any circumstances in which the Philadelphia District is enforcing the Ditch Rule, there is a good chance that they would be in contempt of the court's order.  We'd like to hear about those.

As Mary Lynn mentioned, I am heading out of town to the SLGA conference, but will be in the office Mon-Thursday next week if we need to talk further.

Thanks, Duane

Duane Desiderio

Staff Vice President, Legal Affairs

National Association of Home Builders

p: (202) 266-8146

f: (202) 266-8161

ddesiderio@nahb.com

www.nahb.org

See Court Order Here

See COE e-mail Here

See the TSD Here

PC Determinations

There is a rumor that the COE will be considering that when a prior converted (PC) agricultural field changes use from agriculture to development that the non-jurisdictional PC area reverts back to jurisdictional wetlands. This would be contrary to the regulations and we will be keeping a close eye on this. We will report any developments here.

New Guidance for Mitigation Monitoring

The COE has issued new guidance for mitigation monitoring reports. If you have a project that involves mitigation monitoring, contact us to see what this means for you.

January 23, 2006

EPA encourages high density development for Water Quality Protection:

http://www.epa.gov/smartgrowth/water_density.htm

Breaking News (January 17, 2006)

Delmarva Fox Squirrel Status

We have learned that the experimental population of Delmarva Fox Squirrel at Assawoman is no longer considered viable by the USFWS and is no longer of concern. This does not affect the status of any other Delmarva Fox Squirrel Populations in the State. USFWS is expected to issue an official statement in the next few weeks. Just a reminder that JCM Environmental has a certified Fox Squirrel Trapper and can conduct habitat as well as trapping studies. Please call us for more information.

Phase I Environmental Assessment Standards

Changes to Phase I standards are now in effect...see Audits Division Page for details.

As of November 1, 2006, U.S. EPA's All Appropriate Inquiries (AAI) rule is in effect. The final rule establishes specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. To satisfy the statutory requirements for conducting all appropriate inquiries, parties must comply with the requirements of the AAI Final Rule or follow the standards set forth in the ASTM E1527-05 Phase I Environmental Site Assessment Process. According to the EPA, “all appropriate inquiries must be conducted in compliance with either of these standards to obtain protection from potential liability under CERCLA as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.”

JCM Environmental has recently updated our Phase I ESA reports to reflect these changes and to satisfy the requirements of U.S. EPA's AAI Final Rule.

Specific reporting requirements, as summarized by the U.S. EPA, include the following:

•  An opinion as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances (as defined by CERCLA) on, at in, or to the subject property.

•  An identification of data gaps in the information collected for the inquiry that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances on, at in, or to the subject property, as well as comments regarding the significance of these data gaps.

•  Qualifications and signature of the environmental professional(s). The environmental professional must place the following statements in the document and sign the document:

"[I, We] declare that, to the best of [my, our] professional knowledge and belief, [I, we] meet the definition of Environmental Professional as defined in 312.10 of 40 CFR 312 of this part”

“[I, we] have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [I, we] have developed and performed the all appropriate inquires in conformance with the standards and practices set forth in 40 CFR Part 312.”

•  In compliance with 32.31 (b), the environmental professional must include in the final report an opinion regarding additional appropriate investigation, if the environmental professional has such an opinion.

In addition, the new AAI rule requires:

•  ESA must be completed within one year of purchase date and updated within 180 days of purchase.

•  ESA must be performed by an environmental professional.

•  Data must be researched to a date “from the time the property was first used for residential, agricultural, commercial, industrial or governmental purposes.”

•  Report must contain “reasonable ascertainable information within the local community about the subject property”.

See the Audits Division Page for Details.

Bog Turtles ...

LOOKING FOR CLEMMYS?? Click here to find out why the answer is NO!

Bog Turtle Season will be here before you know it! Schedule you Phase II Study now before it is too late.

See our Bog Turtle Information page here.

Part of the Bog Turtle Search Crew - Todd, Craig, Will, Andrew, Catherine and Tim

Delmarva Fox Squirrel Trapping

We completed DFS Trapping on two sites in Sussex County in the Fall of 2005. Trapping was performed according to the Federal guidelines in areas where the State and/or USFWS felt that there was DFS Habitat. No Delmarva Fox Squirrels were trapped on either site during these studies.

We are currently performing several DFS Habitat studies in Sussex County, Delaware.

For more information, contact Jim at (302) 218-3866 or jim@jcmenv.com.