Wetland Mitigation, Volume 2, A Guidebook for Airports (2019)

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10 2.1 Introduction In 2008, the USEPA and the USACE prepared and released the docu- ment Compensatory Mitigation for Losses of Aquatic Resources; Final Rule (USACE 2008). These regulations define compensatory mitigation as “the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved.” (40 Code of Federal Regulations [CFR] Part 230.92) Definitions of the compensatory wetland mitigation types are explained in greater detail in Chapter 4, Section 4.4, Wetland Mitigation Methods of this guidebook. The regulatory requirements for carrying out compensatory wetland projects are often com- plex and time consuming. The planning, permitting, design, construction, monitoring, and long-term maintenance of these projects generally involve coordination with multiple resource agencies that can include federal, state, county, and local entities. They can also include other stakeholders such as Native American councils, environmental advocacy groups, and the public. This chapter of the guidebook was prepared to summarize existing regulations that may affect how compensatory wetland mitigation projects are implemented and completed. Because of the complexity of the process, the FAA encourages project proponents to initiate coordination with regulatory agencies early in the planning stages of the proposed projects to identify permitting and design issues and to eliminate future delays (FAA 2015a). For proposed projects that are likely to impact wetland resources, it is advisable to identify wetland boundaries as well as their functions, such as flood storage, wildlife habitat, and values that stem from these ecological func- tions during the Airport Master Plan update process. The regulations cited herein are accurate to the best of the authors’ knowledge as of the writing of this report. However, regulations are routinely updated, amended, or replaced. Therefore, a table of federal and state regulatory agencies and additional stakeholders is included in Appendix B of this document. It is advisable for users to make use of these and other available resources for updated regulatory requirements. 2.2 Federal Regulations The two major federal regulations that affect the implementation of airport compensatory wetland mitigation projects are the NEPA and the CWA (see Figure 2-1). There are numerous other federal regulations, including those that relate to fish and wildlife, endangered species, C H A P T E R 2 Regulatory Issues 2008 Compensatory Wetland Mitigation Types • Restoration • Establishment/Creation • Enhancement • Preservation

Regulatory Issues 11 coastal zone resources, floodplains, surface water quality, hazardous waste, and historical and archaeological resources, that may constrain the successful development of mitigation sites. Brief discussions of federal regulations and additional sources of information are included below. 2.2.1 The National Environmental Policy Act NEPA, signed into law on January 1, 1970, is the primary federal regulation for protection of the environment. All projects that involve a federal action, including federal funding, or that require a federal permit to proceed must follow NEPA procedural requirements of the Council on Environmental Quality (CEQ) NEPA Regulations (40 CFR § 1500 to 1508). The federal agency that funds or oversees the project is designated as the “lead agency.” In some instances, the federal lead agency may act in cooperation with state, local, or tribal agencies as joint lead agencies (USEPA 2017e). The range of actions that cause significant environmental effects is “broad and includes issuing regulations, providing permits for private actions, funding private actions, making federal land management decisions, constructing publicly owned facilities, and many other types of actions. Using the NEPA process, agencies are required to determine if their proposed actions have significant environmental effects and to consider the environmental and related social and economic effects of their proposed actions.” (USEPA 2017e) Implementing NEPA requires executive federal agencies or their consultants to prepare one or more of the following environmental documents (see Figure 2-2): • Categorical exclusion (CE or CATEX), • Environmental assessment (EA), and/or • Environmental impact statement (EIS). Figure 2-1. Federal regulations affecting project implementation. Figure 2-2. NEPA process documents.

12 Wetland Mitigation, Volume 2: A Guidebook for Airports CEs are categories of actions that “do not individually or cumulatively have a significant effect on the human environment and for which, therefore, neither an environmental assessment nor an environmental impact statement is required” (40 CFR § 1508.4). In other words, if the pro- posed project is expected to have little to no impact to the human environment, then an EA or EIS will not be required. However, if a CE is being prepared and “extraordinary circumstances” are encountered, an EA or EIS may need to be prepared. Extraordinary circumstances are “factors or circumstances in which a normally categorically excluded action may have a signifi- cant environmental impact that then requires further analysis in an EA or an EIS” (FAA 2015a). Examples of extraordinary circumstances include significant impacts to natural resources such as wetlands, floodplains, coastal resources, or to cultural resources such as, historic sites, Section 4(f) sites, or Native American sites. If analysis determines that the action or actions for which the CE was prepared would involve extraordinary circumstances or has the potential to result in environmental impacts, the lead agency must prepare an EA. An EA is intended to be a concise public document that determines whether the proposed action or actions would have the potential to cause significant environ- mental and associated social impacts. The EA process includes: • A purpose and need statement; • A discussion of proposed alternatives; • An evaluation of the likely impacts of the proposed action and alternatives and, as appropriate, mitigation measures to reduce those impacts to less than significant levels; • Documentation that identifies the agencies and individuals consulted and their counsel or findings (CEQ 2007); and • In some cases, the holding of a public hearing. Once a draft EA is completed, the project proponent is also generally required to post a notice of completion in local newspapers and/or on an airport’s website to allow for public comment. If analysis determines that the proposed action or actions will cause no significant impacts, the lead agency may issue a finding of no significant impacts (FONSI) and the project may proceed. If, however, it determines the proposed action or actions will cause significant impacts that cannot be mitigated, an EIS will be required. Specifically, an EIS is required “when one or more environmental impacts of a proposed action would be significant and mitigation measures would not reduce the impact(s) below significant levels” (FAA 2015a). The EIS process includes (see Figure 2-3): • Prepare and file a Notice of Intent (NOI) in the Federal Register, which informs the public of the proposed action or actions; • Prepare a Purpose and Need Statement that clearly defines the general purpose of the proposed action or actions and explains the need for the action or actions. The Purpose and Need Statement should be written in language that the public understands; • Discuss the various alternatives that have been evaluated, including the no action alternative, the preferred alternative, and any other reasonable alternatives; • Describe the environmental resources and general condition of the area that will be impacted by the proposed action or actions; • Discuss the comparative environmental consequences of each of the evaluated alternatives; • Discuss the various mitigation measures considered and whether the alternatives would avoid and/or minimize adverse impacts to the environmental resources; EA Process • Purpose and need • Proposed alternatives • Likely impacts of proposed alternatives • Document information sources and agencies • Public hearings, when warranted

Regulatory Issues 13 • Prepare a Draft EIS that is released for public review and comment for at least 45 days. After the review period, ensure that all substantive comments are considered, and appropriate changes are made to the document; and • Publish a Final EIS and Notice of Availability on the Federal Register that informs the public of a 30-day waiting period during which the documents can be further reviewed. The EIS process is completed by the issuance of a Record of Decision (ROD). The ROD: • Explains the lead agency’s decision; • Describes the alternatives the agency considered; and • Discusses the agency’s plans for mitigation and monitoring, if necessary. (FAA 2015a) 2.2.2 FAA and the NEPA Process The lead agency for most airport-related wetland mitigation projects is the FAA. To assist aviation facilities to achieve and maintain compli- ance with NEPA’s regulations, the FAA has issued two orders: • FAA Order 1050.1F—Environmental Impacts: Policies and Procedures; and • FAA Order 5050.4B—National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions. Order 1050.1F is the FAA’s primary document that sets the policies and procedures for meet- ing compliance with NEPA and applies to, but is not limited to, the following actions: Grants, loans, contracts, leases, construction and installation actions, procedural actions, research activities, rulemaking and regulatory actions, certifications, licensing, permits, plans submitted to the FAA by state and local agencies for approval, and legislation proposed by the FAA. (FAA 2015a) A “Desk Reference” was also prepared by the FAA to supplement the main text of 1050.1F and provide: Explanatory guidance for environmental impact analysis performed to comply with Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of the National Figure 2-3. EIS process (Env. = environmental). Additional general guidance regarding the NEPA process can be found at: • https://www.gpo.gov/fdsys/granule/ CFR-2011-title40-vol33/CFR-2011- title40-vol33-part-id1102/content- detail.html • https://www.blm.gov/style/medialib/ blm/nm/programs/planning/planning_ docs.Par.53208.File.dat/A_Citizens_ Guide_to_NEPA.pdf • https://www.epa.gov/nepa/what- national-environmental-policy-act • https://www.epa.gov/nepa/national- environmental-police-act-review- process#EIS

14 Wetland Mitigation, Volume 2: A Guidebook for Airports Environmental Policy Act (CEQ Regulations) (40 Code of Federal Regula- tions [CFR] parts 1500-1508), U.S. Department of Transportation (USDOT) Order 5610.1C, Procedures for Considering Environmental Impacts, and Federal Aviation Administration (FAA) Order 1050.1F Environmental Impacts: Policies and Procedures. (FAA 2015b) Order 5050.4B is meant to supplement Order 1050.1F and is the “FAA’s effort to ensure its personnel has clear instructions to address potential environmental effects resulting from major airport actions” (FAA 2015a). Certain environmental laws, referred to as “special pur- pose laws,” fall outside the purview of NEPA. The FAA or their con- sultant is required to comply with these laws in addition to NEPA. The FAA Desk Reference “summarizes applicable special purpose laws in one location for conve- nience and quick reference” (FAA 2015a). The first step in the NEPA process is determining whether an action qualifies as a CATEX. Section 5-6 of Order 1050.1F lists actions that “normally do not individually or cumulatively have a significant effect on the human environment,” and therefore qualify for a CATEX. Addi- tional guidance can be found in Table 6-2 of Order 5050.4B, which specifically describes actions that generally qualify as CATEXs. Actions described in Order 1050.1F that qualify as a CATEX include the placing of “earthen fill into previously excavated land with material compatible with the natural features of the site, provided the land is not delineated as a wetland; or minor dredging or filling of wetlands or navigable waters for any categorically excluded action, pro- vided the fill is of material compatible with the natural features of the site, and the dredging and filling qualifies for an USACE nationwide or a regional general permit” (FAA 2015a). The granting of a CATEX assumes that no extraordinary circumstances exist for which appro- priate mitigation measures are feasible and practicable. If the action does not qualify for a CE, an EA must be prepared. The FAA has established thresholds for certain resource categories that are used to determine the significance of impacts. If these thresholds are exceeded, and there are no appropriate and practicable mitigation measures to reduce the impacts below the thresholds, that would require the preparation of an EIS. The threshold for “jurisdictional and non-jurisdictional wetlands” established in Order 1050.1F is exceeded when an action: • Adversely affects a wetland’s function to protect the quality or quantity of a municipal water supply, including sole source aquifers and potable water aquifers; • Substantially alters the hydrology needed to sustain the affected wetland’s values and func- tions or those of a connected wetland; • Substantially reduces the affected wetland’s ability to retain floodwaters or storm runoff, thereby threatening public health, safety, or welfare. Welfare includes cultural, recreational, and scientific public resources or property; and • Adversely affects the maintenance of natural systems supporting wildlife and fish habitat or economically important timber, food, or fiber. 2.2.3 Clean Water Act (CWA) The CWA 33 U.S.C. §1251 et seq. “establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. ‘Clean Water Additional information on environmental policy guidance can be found at: • https://www.faa.gov/about/office_org/ headquarters_offices/apl/environ_ policy_guidance/policy/faa_nepa_ order/desk_ref/ A complete listing of significance thresh- olds by resource category can be found in Table 7.1 in Order 5050.4B. The full texts of the latest version of FAA Order 1050.1F and Order 5050.4B can be found at: • https://www.faa.gov/documentLibrary/ media/Order/FAA_Order_1050_1F.pdf • https://www.faa.gov/airports/resources/ publications/orders/environmental_ 5050_4

Regulatory Issues 15 Act’ became the Act’s common name with amendments in 1972.” Section 404, Section 401, and to a lesser extent, Section 402 are particularly relevant to federally funded projects affecting wetlands and are summarized in the following sections. 2.2.3.1 Clean Water Act Section 404 Section 404 of the CWA regulates the discharge of dredged or fill mate- rial into wetlands and other waters of the U.S. A permit is required prior to placing any dredged or fill material into regulated wetlands and waters. To obtain a permit, it must be demonstrated that wetland impacts have been avoided and minimized where possible. Compensation (“mitigation”) must be provided for any impacts that cannot be avoided. “For unavoid- able impacts, compensatory mitigation is required to replace the loss of wetland and aquatic resource functions in the watershed” (USEPA 2015c). Wetlands regulated under Section 404 of the CWA are currently defined as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Wetlands can include a variety of areas, such as swamps, marshes, bogs, wet meadows, and floodplain for- ests. Wetlands are identified using the methodology outlined in the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual (USACE 1987), which has three criteria for defining an area as a wetland: hydrophytic (wetland) vegetation; hydric (wet or moist) soils; and wetland hydrol- ogy. If all three criteria are present, then an area is considered a wetland. In addition to the 1987 Delineation Manual, there are various supplemental manuals that are specific to particular regions of the United States. The definition of “Waters of the U.S.” under Section 404 of the CWA has been subject to many changes and is currently being reviewed by the appropriate agencies pursuant to an Executive Order signed on February 28, 2017. A definition of Waters of the United States became effective in August 2015 and defined waters of the U.S. as including navigable waters, tidal waters, interstate waters and wetlands, territorial seas, impoundments, and tributaries. Certain types of waters and wetlands that are determined on a case-by-case basis to have a significant nexus to other waters of the U.S. also fall under the jurisdiction of Section 404 of the CWA. These waters and wetlands include prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairie wetlands. In addition, waters located within a 100-year floodplain and waters located within 4,000 feet of the high tide line or ordinary high-water mark of waters of the U.S. are regulated under the CWA if they have a significant nexus to other waters of the U.S. The 2015 definition of “waters of the United States” has been stayed by the U.S. Court of Appeals for the Sixth Circuit. A joint news release by the USEPA and the USACE on November 16, 2017, stated that the agencies “are proposing to amend the effective date of the 2015 rule defining ‘Waters of the United States’” (USEPA 2017b). As a result, the USEPA and USACE resumed nationwide use of the 1986/1988 definition. Several levels and types of Section 404 permits exist and vary by state and region. In gen- eral, individual permits are required for “potentially significant impacts” and smaller impacts are typically covered under general permits, which are issued on a national, regional, or state level. The USACE is responsible for issuing Section 404 permits and the USEPA is typically involved in the review of individual permit applications. Other involved agencies include the USFWS and the National Marine Fisheries Service (NMFS), which review impacts to fish and wildlife. Historic resource agencies and tribal councils may also participate in the permit review process. Three Criteria for Defining a Wetland • Hydrophytic (wetland) vegetation • Hydric (wet or moist) soils • Wetland hydrology Copies of the supplemental manuals can be accessed at: • http://www.usace.army.mil/Missions/ Civil-Works/Regulatory-Program-and- Permits/reg_supp/

16 Wetland Mitigation, Volume 2: A Guidebook for Airports In many states the USACE uses nationwide permits (NWPs), which are general permits that are issued on a national level. NWPs are updated and reissued by the USACE every 5 years. The latest proposed update of NWPs became effective in March 2017. There are currently 52 differ- ent NWPs that apply to specific project and impact types. NWPs that are most likely to pertain to airport projects include: • NWP 3, Maintenance; • NWP 14, Linear Transportation Projects; • NWP 20, Response Operations for Oil and Hazardous Substances; • NWP 33, Temporary Construction, Access, and Dewatering; • NWP 39, Commercial and Institutional Developments; • NWP 41, Reshaping Existing Drainage Ditches; • NWP 43, Stormwater Management Facilities; and • NWP 46, Discharges in Ditches. Impact thresholds are identified within each specific NWP, although for many the impact threshold is 0.5 acres or 300 linear feet of stream channel. Impacts over this require an individual permit. Although NWPs have a more simplified application and review process compared to an individual permit, certain general and regional conditions must still be met, including mitiga- tion for impacts above a particular threshold. General Condition 23(c) in the 2017 Nation- wide Permits General Condition requires mitigation for wetland impacts that exceed 0.1 acre. (USACE 2017b) Other general conditions relate to issues such as threatened and endangered species, historic properties, migratory birds, and tribal rights. 1986/1988 Regulatory Definition of “Waters of the United States” 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 2. All interstate waters including interstate wetlands; 3. All waters such as interstate lakes, rivers, streams (including intermittent stream), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: a. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or c. Which are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of water otherwise defined as waters of the United States under this definition; 5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; 6. The territorial sea; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treat- ment systems, including treatment lagoons designed to meet the require- ments of CWA (other than cooling ponds as defined in 40 CFR 423.11 (m) which also meet the criteria of this definition) are not waters of the United States. (40 CFR 230.3[s])

Regulatory Issues 17 In other states, the USACE administers regional general permits (RGPs) instead of NWPs. RGPs are general permits issued by the USACE that authorize activities on a regional basis that are similar in nature and that cause only minimal adverse environmental impacts to aquatic resources. At least thirteen states have or have had state programmatic general permits (SPGPs). SPGPs are “administered by a state agency and designed to eliminate duplication of effort between USACE districts and states, as well as to make the permitting process more efficient with flexibility as to the geographic region covered and whether nationwide permits are revoked” (ASWM 2014). The timeframe for acquiring a wetland permit varies greatly. Factors that influence the timing include the type of permit, the type of wetland to be impacted, the size and location of the impacted area, and the type of mitigation to be proposed. Therefore, to identify these and other vari- ables early in the project planning is important for the project proponent. 2.2.3.2 Wetland Mitigation Under Section 404 The two federal regulations that outline requirements for wetland mitigation under Section 404 of the CWA include the Section 404(b)(1) Guidelines, which were finalized in 1980, and the Compensatory Miti- gation for Losses of Aquatic Resources, Final Rule also known as the “Final Rule” (33 CFR Part 332) (USEPA 2008). These regulations discuss the need to avoid and minimize wetland impacts as a first step in the miti- gation process. In addition, an applicant must demonstrate that there are no practicable alternatives to the proposed discharge of dredged and fill material that would have less impact. The process is often complex, expensive, and time consuming—project proponents are urged to con- sider these factors when planning their mitigation strategies. Once analysis determines that wetland impacts cannot be further avoided or minimized, compensation is provided for any remaining impacts to wetland and aquatic resource functions (see Figure 2-4). As defined above, com- pensatory mitigation is “the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances, preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved” (USEPA 2008). Restoration involves returning historic functions to a degraded wetland site. Enhancement involves improving the functions of an existing aquatic resource. Enhancement does not result Additional information about program- matic general permits can be found at: • http://www.nap.usace.army.mil/ Missions/Regulatory/Permits/SPGP.aspx Timeframe for permit acquisition The timeframe for acquiring a wetland permit varies greatly. Factors that influence the timing include: the type of permit; the type of wetland to be impacted; the size and location of the impacted area; and the type of mitigation to be proposed. Therefore, to identify these and other variables early in the project planning is impor- tant for the project proponent. Additional information on the Section 404 program can be found at: • https://www.epa.gov/cwa-404 Figure 2-4. Compensatory mitigation methods and mechanisms.

18 Wetland Mitigation, Volume 2: A Guidebook for Airports in an increase in wetland area but results in a gain of a specific function or functions. Establish- ment/creation involves the development of a new aquatic resource in an upland area, resulting in both a gain in wetland area and functions. Preservation involves the use of legal and/or physical mechanisms to protect and maintain existing aquatic resources. The 2008 Rule also establishes three mechanisms for providing compensatory mitigation, including: • Permittee-responsible compensatory mitigation, • Mitigation banks, and • In-lieu-fee mitigation. Permittee-responsible mitigation can either be on site (within the separation distances as defined by the FAA and discussed in later chapters) or off site (outside the separation distances, typically within the same watershed). As implied by the name, the permittee undertakes the mitiga- tion that can include aquatic resource restoration, enhancement, establishment, or preservation. Mitigation banks are sites established to provide compensatory mitigation and are generally run by private organizations or, in some regions, by state, county, or local governments, referred to as the mitigation bank sponsor. Mitigation credits are sold to permittees, and the responsibil- ity to provide mitigation is transferred to the mitigation bank sponsor. Mitigation banks can include aquatic resource restoration, enhancement, establishment, or preservation and generally must achieve certain milestones before credits can be sold to permittees. In-lieu-fee programs are usually run by state governments, local governments, or non-profit, non-governmental organizations. They generally depend on fees from permittees to begin miti- gation projects, and construction or preservation of the compensatory wetland site generally begins after fees have been collected. The 2008 Rule establishes a preference for mitigation banks and in-lieu-fee programs since they are considered more successful than permittee-responsible mitigation. In addition, restora- tion is generally preferred over enhancement, establishment, or preservation because it is usually more successful, results in less upland impact compared to establishment, and can have more benefit to functions and values than enhancement or preservation. 2.2.3.3 CWA Section 401 Section 401 applies to any applicant for a federal license or permit for an activity that may result in discharges to wetlands and other waters of the U.S. Section 401 requires the applicant to obtain a cer- tification from the state to show that the project complies with state- specific water quality standards. Since Section 401 certifications are issued at the state level, programs and requirements vary by state. The thresholds for requiring Section 401 certification are determined by the state. Some states, for example, only require Section 401 certifica- tion review for individual Section 404 permits, while other states may review projects that are authorized under a general or nationwide 404 permit. As with the Section 404 permit, it is important to identify the scope of Section 401 certifications early in the project planning to determine what, if any, impacts the Section 401 requirements will have on the nature and extent of wetland mitigation requirements, the timeframe within which the project is to be completed, and the total cost of the project. CWA Section 401 Since Section 401 certifications are issued at the state level, programs and requirements vary by state. The state determines thresholds for requiring Section 401 certification. Additional information on Section 401 of the CWA can be found at: • https://www.epa.gov/cwa-404/clean- water-act-section-401-certification

Regulatory Issues 19 2.2.3.4 CWA Section 402 The National Pollutant Discharge Elimination System (NPDES) was established under Sec- tion 402 of the Clean Water Act in 1972. It was established to provide a framework to permit the discharge of pollutants through point sources to waters of the United States, in compliance with established effluent limitations (see Figure 2-5). Permit types include individual permits and general permits. Individual permits are site-specific, while general permits group similar facili- ties or sources of discharges together. State environmental agencies have the option of accepting delegation of the permitting authority and administering their own program or relying upon the USEPA to oversee the permitting process. In either case, the permitting requirements must be at least as stringent as the federal regulations. The NPDES permits are generally revised, updated, and re-issued every five years. Forty-six states have agreed to administer their own programs. The remaining four states, Idaho, Massachusetts, New Hampshire, and New Mexico, operate under the federal permits, although Idaho has initi- ated the process to become a “delegated” state and administer its own program. Two NPDES stormwater general permits, the 2017 NPDES construc- tion general permit (CGP) and the 2015 NPDES multi-sector general permit (MSGP), or their counterparts in states that have been delegated to administer their own stormwater programs, may come into play dur- ing the development of compensatory wetland mitigation projects, thus adding to the overall project cost and, potentially, the timing of construction activities. While delegated state storm- water programs generally model the federal permit, airport operators in delegated states should become familiar with the state permits that apply to them. A CGP is required if a project “will disturb 1 or more acres of land or will disturb less than 1 acre of land but is part of a common plan of development or sale that will ultimately disturb 1 or more acres of land” (USEPA 2017d). A CGP will be required if the implementation of a proposed project or an associated wetland mitigation alternative will exceed disturbance thresh- olds. In cases where the selected mitigation alternative is the use of a wetland bank or in-lieu-fee program, the project proponent is not likely to be required to obtain a CGP for the mitigation, but one may be required for the proposed project implementation. The major elements of a CGP generally include: • Preparation and submittal of a Notice of Intent (NOI) form; • Conducting site inspections; • Completion of Corrective Actions, as necessary; Figure 2-5. Section 402 NPDES framework for permitting (CGP = construction general permit, MSGP = multi-sector general permit). Additional information and guidance on the NPDES program can be found at: • https://www.epa.gov/npdes/about- npdes#overview

20 Wetland Mitigation, Volume 2: A Guidebook for Airports • Personnel training; • Preparation and upkeep of a Stormwater Pollution Prevention Plan (SWPPP); • Coordination with the USFWS regarding the possible presence of federally Threatened or Endangered Species; and • Coordination with the state’s historical preservation authority. The MSGP covers thirty industrial sectors based upon their Stan- dard Industrial Classification (SIC) codes. Airports are covered under Sector S—Air Transportation Facilities. Most airports are required to seek coverage under this permit if any portions of the facility are involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling and lubrication), equipment cleaning operations, or deicing operations (USEPA 2015a). Part 5.2.2 of the permit requires the operator to produce a site plan that depicts all drainage features on the permitted portion of the facil- ity. Therefore, if any elements of a proposed mitigation plan would alter existing drainage features, the site plan and the associated SWPPP must be updated to reflect these changes. 2.2.4 U.S. Fish and Wildlife Service (USFWS) The USFWS is the federal agency charged with conserving, protecting, and enhancing the country’s fish, wildlife, plants, and their habitats. Key federal regulations include the Fish and Wildlife Coordination Act as amended (16 U.S.C. 661 et seq.) and the Endangered Species Act of 1973 as amended (ESA) (16 U.S.C. § 1531 et seq.). The agency also produces and updates the National Wetlands Inventory (NWI). The NWI is “a publicly available resource that provides detailed information on the abundance, characteristics, and distribution of U.S. wetlands.” NWI data are used by natural resource managers, within the USFWS and throughout the nation, to promote the understanding, conserva- tion, and restoration of wetlands. Wildlife issues that may affect the design and construction of com- pensatory wetland mitigation sites include wildlife attractant hazards and/or threatened and endangered species issues. 2.2.4.1 Wildlife Attractant Hazard Regulations and Guidance In 2003, FAA, the U.S. Air Force (USAF), the USEPA, the USACE, the USFWS, and the U.S. Department of Agriculture (USDA) signed a MOA that acknowledged the hazards of wildlife on or in proximity to aviation facilities. The MOA established procedures that were “neces- sary to coordinate their missions to more effectively address existing and future environmental conditions contributing to aircraft–wildlife strikes throughout the United States. These efforts are intended to mini- mize wildlife risks to aviation and human safety, while protecting the nation’s valuable environmental resources” (FAA et al. 2003). The agencies agreed that information and analyses relating to wet- land mitigation that could cause or contribute to aircraft–wildlife strikes The complete text of the CGP can be found at: • https://www.epa.gov/sites/production/ files/2016-04/documents/proposed_ 2017_cgp_and_appendices_final.pdf The complete text of the MSGP can be found at: • https://www.epa.gov/sites/productions/ files/2015-10/documents/msgp2015_ finalpermit Additional information can be found at: • https://www.fws.gov/wetlands/ Wildlife Attractants and Agency Coordination It is important for airport action pro- ponents to identify potential wildlife attractant issues early in the planning process and to coordinate with the appropriate agencies to include design features that avoid or minimize the potential for future wildlife strike hazards.

Regulatory Issues 21 “should, whenever possible, be included in documents prepared to satisfy the NEPA. This should be done in coordination with appropriate signatory agencies to inform the public and federal decision makers about important ecological factors that may affect aviation. This concurrent review of environmental issues will promote the streamlining of the NEPA review process” (FAA et al. 2003). Therefore, it is important for airport action proponents to identify potential wildlife attractant issues early in the planning process and to coordinate with the appropriate agencies to include design features that avoid or minimize the potential for future wildlife strike hazards. The FAA further addressed this issue in Advisory Circular (AC) 150/5200-33B Hazardous Wildlife Attractants On or Near Airports. FAA recognized that “mitigation may be necessary when unavoidable wetland disturbances result from new airport devel- opment projects. Wetland mitigation should be designed so it does not create a wildlife hazard” (FAA 2007). The document’s recommended distance between an airport’s aircraft movement areas, loading ramps, or aircraft parking areas and any wetland mitigation site that may act as a wildlife attractant is: • 5,000 feet for airports serving piston-powered aircraft; • 10,000 feet for airports serving turbine-powered aircraft; and • 5.0 statute miles, if the wildlife attractant feature may cause hazard- ous wildlife movement into the approach or departure airspace (FAA 2007). 2.2.4.2 Threatened and Endangered Species Regulations and Guidance The USFWS is the principal federal agency responsible for admin- istering the ESA and “taking the lead in recovering and conserving the Nation’s imperiled species by fostering partnerships, employing scientific excellence, and developing a workforce of conservation leaders” (USFWS 2015). The ESA protects endangered and threatened species and their habi- tats “by prohibiting the ‘take’ of listed animals and the interstate or international trade in listed plants and animals, including their parts and products, except under Federal permit. Such permits generally are available for conservation and scientific purposes” (USFWS 2013). In planning, designing, implementing, and maintaining success- ful wetland mitigation sites, the project proponent must consider the potential presence of threatened and endangered species and their asso- ciated habitat, and how these species and habitats may be impacted by the project. Active measures to protect threatened or endangered wildlife or preserve their habitat may also be approved as mitigation options. 2.2.5 National Marine Fisheries Service The NMFS is an office of the NOAA, U.S. Department of Commerce. NMFS is responsible for the stewardship of the nation’s ocean resources and their habitat. Pursuant to this goal they are directed to review and Additional information and guidance regarding the MOA and AC 150/5200-33B can be found at the links below: • https://www.faa.gov/airports/airport_ safety/wildlife/resources/media/ Multi_Agency_Wildlife_MOA.pdf and • https://www.faa.gov/document Library/media/advisory_circular/ 150-5200-33B/150_5200_33b.pdf. Additional information and guidance regarding threatened and endangered species issues can be found at the links below: • https://www.fws.gov/endangered/ laws-policies/index.html, • https://www.fws.gov/endangered/ esa-library/pdf/ESA_basics.pdf, and • https://www.fws.gov/endangered/ about/index.html. Additional information and guidance regarding the role and requirements of the NMFS can be found at: • http://www.nepa.noaa.gov/NEPA_ HANDBOOK.pdf and • http://www.nmfs.noaa.gov/aboutus/ our_mission.html.

22 Wetland Mitigation, Volume 2: A Guidebook for Airports comment on NEPA and CWA documents that evaluate impacts on marine, estuarine, or anadromous fish or their critical habitat, wetlands that support these species, and critical habitat for certain species listed on the ESA (NOAA 2009). Therefore, proponents of any wetland miti- gation project that may have the potential to adversely impact any of these resources should coordinate with the NMFS. 2.2.6 National Historic Preservation Act—Section 106 Federally funded actions, such as compensatory wetland mitigation projects that have the potential to adversely impact historic resources must comply with Section 106 of the National Historic Preservation Act of 1966 (NHPA). Regulations of the NHPA require federal agencies to evaluate potential impacts and the effects of their proposed actions on historic properties and “afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportu- nity to comment” (ACHP 2013). The historic preservation review process mandated by Sec- tion 106 is outlined in regulations issued by ACHP and can be found at 36 CFR Part 800. The ACHP defines historic properties as those that are “included in the National Register of Historic Places or that meet the criteria for the National Register.” If it is found that an action, such as the construction of a wetland mitigation site, has the potential to impact historic resources, the project proponent is required to consult with the appropriate State Historic Preservation Office (SHPO) and/or Tribal Historic Preservation Office (THPO) (ACHP 2013). 2.3 State Regulations State regulations that may affect the planning, design, permitting, construction, and post- construction monitoring of wetland mitigation projects vary greatly. Until 2014, only 26 states had USEPA-approved wetland program plans. An additional 10 states were in the process of developing plans (Zollitsch and Christie 2015). All 50 states do, however, regulate wetland resources to some extent through Section 404 permits coordination, Section 401 water quality programs, floodplain regulations, shoreland zoning, coastal zone management, threatened and endangered species regulations, and statutes. State agencies that may need to be contacted for guidance during the wetland permitting and mitigation process can be found in Appendix B. Many variables govern the nature of state agency oversight regarding activities in wetlands and the degree to which it affects wetland mitigation requirements, including: • Jurisdictional issues, • The type(s) of wetlands impacted, • The amount of wetlands impacted, and • The proposed type(s) of mitigation allowed by agencies charged with overseeing the project. 2.3.1 Wetland Mitigation Project Jurisdiction The USACE, individual state resource agencies, or a combination of the two may be responsible for overseeing compensatory wetland miti- gation projects. Some states, such as Alaska, Nevada, and Wyoming rely on the USACE for oversight of mitigation projects. Michigan and New Jersey have accepted delegation of Section 404 implementation. Other Additional guidance regarding the ACHP and the NHPA can be found at: • http://www.achp.gov and • http://www.achp.gov/nhpa.pdf. USACE Wetland Functions & Values • Groundwater recharge/discharge, • Floodflow alteration, • Fish and shellfish habitat, • Sediment/toxicant/pathogen retention, • Nutrient removal/retention/ transformation, • Production (or nutrient) export, • Sediment/shoreline stabilization, • Wildlife habitat, • Recreation, • Educational/scientific value, • Uniqueness/heritage, • Visual quality/aesthetics, and • Threatened or endangered species habitat (USACE 1999)

Regulatory Issues 23 states implement wetland permits and mitigation jointly with the USACE, using individual permits, nationwide permits, regional permits, and programmatic general permits. 2.3.2 Wetland Types and Their Relative Importance Factors that must be assessed when evaluating the relative importance of individual wetlands include the functions and values they serve and the ability to replicate them, how common that type of wetland is, and their proximity and connectivity to other wetland resources. “The value of a particular wetland function, or combination thereof, is based on human judgment of the worth, merit, quality, or importance attributed to those functions” (USACE 1999). The USACE recognizes 12 wetland functions; however, many states have adopted their own lists of wetland functions that include more or fewer items and/or state-specific functions. Sev- eral examples of state wetlands functions and values are included in Table 2-1. Additional infor- mation regarding state-specific functions and values can be found on the state websites cited in Appendix B. The presence and importance of wetland functions are critical elements in developing and implementing wetland mitigation projects. Certain wetland types are less common than others, and if impacted, may come under greater scrutiny during the permitting process and require additional or more extensive mitigation. The Commonwealth of Massachusetts designates certain areas of the state as Areas of Critical Environmental Concern (ACEC). ACEC require stricter environmental review of certain kinds of proposed development under state jurisdiction and may require special wetland mitigation actions. The Atlantic white cedar swamps in New England; the inland salt marsh, lakeplain wet-mesic Prairie, and the lakeplain wet Prairie in Michigan; ridge-and-swale wetlands and interdunal wetlands in Wisconsin; fens found in the mountain west region; and certain coastal wetlands in California are examples of rare or threatened wetland. Some other types of wetlands such as red maple swamps are relatively common, but may be difficult to replicate, thus compli- cating the design, construction, and maintenance of mitigation sites. Not all wetlands are equal with respect to their functions and values, their occurrence in nature, or the rate of success in mitigating their loss. Therefore, many states and the USACE have considered the type(s) of wetlands to be impacted during the assessment process and have established compensation ratios, with examples identified in Figure 2-6 [Association of State Wetland Managers (ASWM) 2014]. Wetlands that are isolated or lack connectivity to other wetlands or water resources may lack functions such as flood flow alteration, fish and shellfish habitat, and sediment/shoreline stabi- lization, and therefore may be considered less important by the governing agencies. However, vernal pools are isolated wetlands that provide functions such as uniqueness, wildlife habitat, or educational/scientific opportunities and thus are generally considered to be valuable resources. States vary on how they address the issue of isolated wetlands. Vermont, for example, has a three-tiered ranking of wetland resources. Class 3 wetlands are described as wetlands that have not been determined by the state wetland program to “be so significant that they merit protec- tion under the rules” (ASWM 2014). 2.3.3 Wetland Impacts The amount of wetland impacts resulting from individual projects is a key element in the wetland permitting and mitigation process in each state. The 1989 “No Net Loss” policy, enacted by President George H. W. Bush, established a federal goal of replacing newly impacted wetlands with wetlands of similar size and function. Since the establishment of the federal no

24 Wetland Mitigation, Volume 2: A Guidebook for Airports Alabama Wetland Functions and Values -Flood Control -Erosion Control -Water Quality and Availability -Atmospheric Benefits -Fish and Wildlife Habitat (Biodiversity) -Natural Resources -Recreation, Education, Research, and Natural Beauty More information available at: http://www.forestry.state.al.us/Publications/TREASURED_Forest_Magazine/2012%20Spring Summer/Alabama%E2%80%99s%20Wetlands.pdf Hawaii Wetland Functions and Values -Flood Conveyance -Protection from Storm Waves and Erosion -Flood Storage -Sediment Control -Habitat for Water Fowl and Other Wildlife -Habitat for Rare and Endangered Species -Recreation -Source of Water Supply -Natural Products -Preservation of Historical and Archaeological Values -Education and Research -Source of Open Space and Contribution to Aesthetic Values More information available at: http://files.hawaii.gov/dbedt/op/czm/initiative/nonpoint/cnpcp_mgmt_plan_sections/III_7- Wetlands.pdf Nevada Wetland Functions and Values -Hydrology and Water Resources -Erosion and Sediment Control -Flood Control -Water Quality Maintenance and Improvement -Wildlife Habitat, Food Web Support, and Biodiversity -Compatible Economic Uses -Outdoor Recreation, Research, and Education More information available at: https://ecology.wa.gov/Water-Shorelines/Wetlands/Education -training/Functions-values-of- wetlands Vermont Wetland Functions and Values -Water Storage -Water Quality Protection -Fish Habitat -Wildlife Habitat -Sensitive Species -Exemplary Communities -Education and Research -Recreation -Open Space More information available at: http://dec.vermont.gov/watershed/wetlands/functions Washington Wetland Functions and Values -Flood Protection -Shoreline Stabilization -Groundwater Recharge and Streamflow Maintenance -Fish and Wildlife Habitat -Economic Benefits More information available at: http://heritage.nv.gov/sites/default/files/Library/wetplan2006pdf Wisconsin Wetland Functions and Values -Floral Diversity -Fish and Wildlife Habitat -Flood Protection -Water Quality Protection -Shoreline Protection -Groundwater Recharge and Discharge -Aesthetics, Recreation, Education, and Science More information available at: https://dnr.wi.gov/topic/wetlands/function.html#determining Source: Compiled by the research team, direct sources are linked for information in the table. Table 2-1. Examples of state wetland functions and values.

Regulatory Issues 25 net loss policy, at least twenty-one states have adopted formal “no net loss” statutes or regu- lations for wetland mitigation projects. Several other states have implied or informal no net loss policies. South Dakota does not have a statewide no net loss policy; however, the state’s DOT has adopted one of its own (ASWM 2014). As noted, compensatory wetland mitiga- tion is allowed only after project proponents have taken all practicable steps to avoid and/or minimize wetland impacts. Nineteen states defer overall wetland mitigation decisions to the USACE (see Table 2-2), although some work jointly with them on specific projects. The remaining 31 states have some form of policies or procedures, formalized or not, that guides the administration of wetland mitigation in their state under their state wetland program (Zollitsch and Christie 2015). Com- pensatory wetland mitigation is generally required on the state level if impacts exceed established thresholds. Most states use the 2017 USACE Nationwide General Permits threshold of greater than 0.10 acre of impact, others vary on a case-by-case basis, and some have more complex requirements (Table 2-2). Some examples of state-specific impact thresholds include: • Louisiana requires a regulatory mitigation plan for all coastal wetland impacts. • Maine has thresholds of greater than 20,000 square feet for permanent wetland impacts, 200 linear feet of disturbance for intermittent or perennial streams, and greater than 20,000 square feet for pond construction. • Minnesota thresholds vary depending upon the nature of the disturbance activity, its location, and the jurisdiction that governs it. • Mississippi requires compensatory wetland mitigation for all activities below the ordinary high-tide level in the Mississippi Coastal Zone. An accurate determination of wetland boundaries is a critical element in determining the area of wetlands to be impacted, and thus the amount of mitigation that will be required. Since wet- land boundaries may change significantly over time, it is advisable to identify the date of the most recently approved delineation and functional assessment to determine the validity of the current delineation. The USACE considers wetland delineation to be valid for up to 5 years; some states, however, use different criteria, such as the Commonwealth of Massachusetts, which considers wet- land delineation to be valid for only 3 years (Massachusetts Wetland Protection Act MGLc. 131). 2.3.4 Methods of Wetland Mitigation The USACE has established a hierarchy of preferred mitigation options that includes, in order of preference, (1) mitigation banking, (2) in-lieu-fee programs, and (3) permittee-responsible Figure 2-6. Examples of state-established compensation ratios.

26 Wetland Mitigation, Volume 2: A Guidebook for Airports State Mitigation Requirement Thresholds Approved Compensatory Mitigation Methods C re at io n R es to ra ti on E nh an ce m en t P re se rv at io n U pl an d B uf fe r P re se rv at io n M it ig at io n B an ki ng In -l ie u- fe e P ro gr am O th er Alabama USACE Threshold X X X X Alaska4 USACE Threshold X X X X X Arizona4 USACE Threshold X X X X Arkansas4 USACE Threshold X X X X X X California USACE Threshold X X X Colorado4 USACE Threshold X X X X Connecticut USACE Threshold X X X Delaware USACE Threshold X X X Florida >0.10 Acres X X X X X Georgia4 USACE Threshold X X X X Hawaii4 USACE Threshold X Idaho4 USACE Threshold X X X X X Illinois USACE Threshold X X X X X X1 Indiana Case by Case X X X X X Iowa Case by Case X X X X X X Kansas4 USACE Threshold X X X X X X Kentucky USACE Threshold X X X X X X Louisiana Case by Case X X X Maine 20,000 square feet of wetlands X X X X X Maryland 5,000 square feet X X X X X X Massachusetts Required for all unavoidable impacts to wetlands X X Michigan Case by Case X X X X Minnesota Case by Case X X X X X X Mississippi >0.10 Acres X X X Missouri Case by Case X X X X X Montana4 USACE Threshold X X X X X X Nebraska4 Case by Case X X X X X X2 Nevada4 USACE Threshold X X X X New Hampshire >10,000 square feet X X X X New Jersey Case by Case X X X X X X New Mexico4 USACE Threshold X X New York Case by case X X X X North Carolina USACE Threshold X X X North Dakota4 USACE Threshold X X X X Ohio USACE Threshold X X X X X X Oklahoma4 Case by Case X X X X X Oregon USACE Threshold X X X X Pennsylvania Required for all unavoidable impacts to wetlands X X X X X X X X3 Rhode Island Case by Case X X X X South Carolina4 Case by Case X X X X X X South Dakota4 USACE Threshold X X X X Tennessee Case by Case X X X X X X Texas4 >3 Acres and/or >1,500 linear feet of streams X X X X X X Utah4 USACE Threshold X X X X Vermont Case by Case X X X Virginia Case by Case X X X X X X X Washington USACE Threshold X X X West Virginia USACE Threshold X X X X Wisconsin Case by Case X X X X X X Wyoming4 USACE Threshold X X X Sources: ASWM, 2014 and individual state websites. 1Wetland research. 2Vegetative management and maintenance. 3Nutrient offset mitigation. 4Defers overall wetland mitigation decisions to USACE. Table 2-2. Mitigation thresholds & approved methods.

Regulatory Issues 27 mitigation. Some states have adopted this hierarchy; others have not, including the state of Louisiana, which prioritizes mitigation options as (1) on-site individual mitigation measures, (2) mitigation banking, and (3) in-lieu-fee programs (ASWM 2014). Wetland mitigation types that are generally accepted by most states include creation/ establishment, restoration/rehabilitation/re-establishment, enhancement, and, under cer- tain circumstances, preservation. The mitigation types accepted by individual states are listed in Table 2-2. Some states accept other forms of mitigation including wetland research (Illinois), vegetation management and maintenance (Nebraska), and nutrient offset mitigation (Pennsylvania) (ASWM 2014). The state of Washington has established ratios of mitigation types to be applied to their wetland banking program, including: • 1:1 to 1:2 for restoration, • 1:1 to 1:5 for creation, • 1:2 to 1:6 for enhancement, and • 1:2 to 1:20 for preservation. [Washington Department of Ecology (WDE) 2000]. 2.3.5 State Fees for Wetland Permits The cost of a wetland permit and associated mitigation plan can increase greatly by states imposing permitting fees. Project proponents ought to be aware of these costs and budget for them accordingly. These fees vary substantially from state to state. As of 2014, at least 18 states did not have any permitting fees for wetland permits. Of the remaining states, flat fees of $75 to $1,000 are charged, while others impose a range of fees depending on the type of wetland to be impacted, the area of the proposed impacts, fees charged for wetlands banks, and/or in-lieu-fee programs (ASWM 2014). Examples of other state variations in fees include: • Mississippi charges $50 for residential permits and $500 for commercial permits. • New Hampshire charges a permit fee of $200 plus an impact fee of $0.20 per square foot. • Ohio charges a base fee of $200 and up to $25,000 for a “review” fee. The review fee is capped at $5,000 for municipal projects and there is no review fee for state projects. • South Carolina charges a “certification” fee of $100 to $1,000. • Tennessee charges a permit fee ranging from $50 to $5,000, plus a maintenance fee for permit applications that remain open for over a year. • Vermont charges project proponents a fee based on the square footage of impact. These fees have ranged from $200 to $95,000. • Wisconsin offers the option of paying $2,000 for an expedited permitting process (ASWM 2014). 2.3.6 NEPA-like States Sixteen states, the Territory of Guam, and the Commonwealth of Puerto Rico have enacted NEPA-like review processes (Table 2-3). While similar in form and purpose to federal NEPA requirements, these review processes were created as state laws, regulations, or executive orders. These processes are separate and distinct from environmental review processes where state-level programs replace federal programs and are generally duplicative in nature. Proj- ect proponent coordination with the federal and state agencies charged with reviewing these documents is important to avoid duplication of labor and reduce project costs and delays in project approval. The District of Columbia, New York City, and the Tahoe Region of Nevada and California have also developed NEPA-like review processes (CEQ 2017). The state of Vermont has a land use and site development law referred to as Act 250. The Vermont Natural Resources Board administers Act 250 through nine district commissions. The

28 Wetland Mitigation, Volume 2: A Guidebook for Airports commissions are charged with the duty of reviewing development applications with respect to potential impacts to resources such as wildlife habitat, streams and shorelines, endangered spe- cies, wetlands, and floodways. Following the review process the commissions issue decisions, and where appropriate, land use permits. 2.3.7 Examples of State-Specific Wetland Mitigation-Related Programs Some states have established wetland mitigation-related programs that may add to the complexity of mitigation projects by implementing further state oversight of mitigation projects. Other state or state-related programs assist in the form of grants or in develop- ing and implementing mitigation options. Several examples of state-specific programs are addressed below. The Habitat Division of the Alaska Department of Fish and Game (ADF&G) agency oversees a Special Area Permit program for any activity disturbing land and water resources within Special Areas that include critical habitats, state game refuges, and state game sanctuaries. The Alaska legislature designates these areas when it passes a statute describing the legal boundaries of each area. Each Special Area has a different general purpose although all provide habitat protection. Due to the nature of the Alaskan landscape, it is not unusual for these areas to be close to urban centers or transportation facilities. The authority of the ADF&G is under Title 5 Fish and Game, Part 5 Protection of Fish and Game Habitat, Chapter 95 Fish and Game Habitat [5 Alaska Admin Code (AAC)95] and is entirely separate from the permitting provisions of the CWA. Permit provisions under 5 AAC95.720 typically include “any provision for the mitigation of damage to fish or wildlife, or their habitats,” including the moni- toring and reporting of such required mitigation efforts. Activities subject to Special Area Permits are evaluated by the ADF&G by requiring the applicant to avoid, minimize, and then mitigate the unavoidable impacts to fish and game habitat. Each special area has individual statutes; many of the areas also have management plans adopted into regulation to guide permit- ting. The purpose of the area and any other specific management Additional information about the Special Area Regulations for the ADF&G can be found at: • http://www.adfg.alaska.gov/index. cfm?adfg=habitatregulations.special California Environmental Quality Act Connecticut Environmental Policy Act Georgia Environmental Policy Act Hawaii Environmental Policy Act Indiana Environmental Policy Act Maryland Environmental Policy Act Massachusetts Environmental Policy Act Minnesota Environmental Policy Act Montana Environmental Policy Act New Jersey Executive Order 215 New York State Environmental Quality Review Act North Carolina State Environmental Policy Act South Dakota Environmental Policy Act Virginia Environmental Impact Report Procedure Washington State Environmental Policy Act Wisconsin Environmental Policy Act Source: CEQ, 2017. Table 2-3. NEPA-like states.

Regulatory Issues 29 considerations for that particular area are also considered when evaluating the effects of any proposed action and mitigation requirements. Therefore, the extent and complexity of any required mitigation plan is in accordance with the scale of the proposed action, the extent of any unavoidable effect, and the nature of the impacted resource. Mitigation plans may therefore include any combination of stream, wetland, or upland habitat, depending on the circumstances. The state of California Coastal Conservancy is a non-regulatory state agency that supports projects to protect coastal resources, including wetland restoration and enhancement. They also provide grants for wetland acquisition and restoration, oversee restoration projects, and provide technical and planning guidance. In cooperation with the USACE, the Wisconsin Department of Natural Resources (WDNR) has created an in-lieu-fee mitigation program called the Wisconsin Wetland Conservation Trust (WWCT). In-lieu-fee pro- grams are regulated by the USACE under the 2008 Federal Rule (33 CFR part 332), as well as a legal agreement termed the Program Instrument that describes how the program functions. The WWCT in-lieu-fee program provides an additional option for satisfying compensatory mitigation obligations. In some cases, the WWCT program could provide wetland mitigation credits in areas where no other mitigation credits are currently available. Through the sale of WWCT credits, the WWCT can satisfy a per- mittee’s legal responsibility to purchase wetland mitigation credits specified by Section 404 permits and WI Section 401 water quality certification. Credits are available for sale to permittees that have avoided and minimized wetland impacts and need to satisfy a wetland compensatory mitigation requirement. The WWCT program uses funds generated from WDNR credit sales to implement wetland restoration projects via a competi- tive WWCT grants program (WDNR 2017). The grants program tenders proposals for wetland restoration projects within 12 sep- arate service areas based on watersheds consistent with those used for mitigation banking and permittee-responsible mitiga- tion. The WDNR has assigned funding to each service area based on foreseen credit demands and funds grant projects based on their competi tive merits. Eligible grant recipients include public agencies, nonprofit con- servation organizations, Wisconsin tribes, any entity registered with the Wisconsin Department of Financial Institutions, or any Wiscon- sin landowners. If a grant applicant is the primary party implement- ing the project, then the applicant must provide their qualifications and a list of projects completed within the last 10 years. If an applicant plans to hire professional contractors or consultants to implement the project, then qualifications of the contractors or con- sultants must also be included with the grant application, includ- ing a list of wetland restoration projects completed within the last 10 years. Additional information about the Conservancy can be found at: • http://scc.ca.gov/projects/ Additional information about the WWCT can be found at: • http://dnr.wi.gov/topic/Wetlands/ mitigation/WWCT.html Additional sources of relevant informa- tion include: • http://onlinepubs.trb.org/onlinepubs/ nchrp/nchrp_rpt_482.pdf • http://www.aswm.org/wetland- programs/state-wetland-programs • http://www.aswm.org/pdf_lib/CQ_ state_wetland_regulatory_6_26_06.pdf • http://www.aswm.org/pdf_lib/ state_summaries/status_and_trends_ report_on_state_wetland_programs_ in_the_united_states_102015.pdf • https://www.epa.gov/cwa-404/ compensatory-mitigation-losses- aquatic-resources-final-rule

30 Wetland Mitigation, Volume 2: A Guidebook for Airports For more state-specific information regarding wetland resources and mitigation policy, project proponents are urged to consult the individual state websites listed in Appendix B. 2.4 Other Stakeholders Many other stakeholders may have legal standing with respect to the permitting and construc- tion of compensatory wetland mitigation projects. These entities may include: • Native American and Alaska Native tribes and councils; • Regional, metropolitan, and local planning offices; • Regional, metropolitan, and local transportation and land use planning agencies; and • Municipal conservation commission and zoning boards. 2.4.1 Tribal Issues Federal Executive Order 13175 (65 CFR 67249) requires fed- eral agencies to develop and implement “an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The USEPA has established the “Enhancing State and Tribal Pro- grams (ESTP) Initiative to promote effective interaction between states and tribal officers in implementing wetland programs” (USEPA 2016d). The FAA has addressed tribal consultation in Part 2-4.4 of Order 1050.1F: During a wetland mitigation project, a government-to-government consultation must be conducted in accordance with the requirements of FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures. In accordance with Executive Order 13175, Consultation and Coor- dination with Indian Tribal Governments, 65 Federal Register 67249 (November 9, 2000), the Federal government continues to work with tribes on projects that have environmental impacts to address issues concerning tribal self-government, trust resources, and tribal treaty and other rights. For regu- lations, legislative comments, or proposed legislation, and other policy statements or actions that have substantial direct effects on Federally Recognized Tribes, the appropriate FAA official should initiate consultation with the recognized leader of the Tribe and seek advice on how to proceed based on the tribal culture and the tribal organization as discussed in FAA Order 1210.20 [emphasis added]. Sources of information for addresses to contact tribes include, for example, State Historic Pres- ervation Offices, the Bureau of Indian Affairs, the FAA’s Federal Historic Preservation Officer, and the FAA’s National or Regional Tribal Consultation Officials. (See also Paragraph 2-4.3, Intergovernmental and Interagency Coordination.) The bold portion of the above quote notes that all initial contacts with Native American Tribes must be initiated by “the appropriate FAA official,” and not the project proponents or their consultants. 2.4.2 Regional and Local Regulations The solicitation of comments, concerns, and suggestions from regional and local entities regarding compensatory wetland mitigation projects is either required or encouraged by most states that have adopted wetland regulations. Examples of regional or area-wide regulatory or special area management entities include: • Florida Critical Areas Commission, • Hackensack Meadowlands Commission—New Jersey, Additional information can be found at: • https://www.epa.gov/wetlands/ what-enhancing-state-and-tribal- programs-effort#whatcoreelements

Regulatory Issues 31 • New York State Adirondack Park, • San Francisco Bay Commission—California, and • Snohomish Estuary Wetland Integration Plan—Washington. A proposed project within these or similarly protected areas may require additional permits or approvals. Individual municipalities may determine which land use activities are approved in and adjacent to wetland resources through the implementation of specific state or local regula- tions. For example, many communities have zoning “overlay” districts that require building setbacks, minimization of new impervious surfaces, and/or specifications regarding the types and amount of on-site vegetation to be established. Other examples of local wetland-related regulations include: • In California local agencies that have adopted state-approved coastal wetland programs may require project proponents to acquire coastal development permits; • Connecticut and Washington State rely extensively on municipal permitting, rather than state-level permitting (Zollitsch and Christie 2015); and • Municipalities in New Hampshire can work cooperatively with the New Hampshire Department of Environmental Services (NHDES) to designate unique, or otherwise valu- able wetland resources as “Prime Wetlands.” These wetlands are then subject to a higher level of regulatory scrutiny, including the implementation of 100-foot buffers. Project proponents do well when they identify local and regional concerns early in the project planning process. Early identification helps avoid delays in the acquisition of required permits and facilitates the timely completion of compensatory wetland design and construction. 2.5 Summary The regulatory requirements for implementing compensatory wetland projects are often complex and time consuming. The planning, permitting, design, construction, monitoring, and long-term maintenance of these projects generally involve coordination with multiple resource agencies that can include federal, state, county, and local entities. They can also include other stakeholders such as Native American councils, environmental advocacy groups, and the pub- lic. The FAA recommends that, as NEPA states, environmental issues “should be identified and considered early in a proposed action’s planning process to ensure efficient, timely, and effective environmental review.” The USEPA 2008 final wetland mitigation rule establishes four methods of mitigation: restoration, enhancement, establishment/creation, and preservation. The regulatory requirements triggered by the implementation of any or all of these mitigation methods will vary greatly depending upon many factors, including: • The type and amount of wetland to be impacted; • The availability of suitable mitigation sites, wetland banks, or in-lieu-fee programs; • The presence of related constraints such as listed threatened or endangered species, histori- cally or culturally significant resources, and potential wildlife hazards; and • The involved regulatory agencies. The regulations and various stakeholders described herein highlight the number of potential requirements that may affect the development, implementation, long-term maintenance, and

32 Wetland Mitigation, Volume 2: A Guidebook for Airports ultimately the cost of a compensatory wetland mitigation project. Not every regulation cited will apply to every project. However, early and frequent coordination with the stakeholders cited will assist project proponents in identifying applicable regulations and pitfalls and facilitate the acquisition of required approvals in a timely and cost-effective manner. Table 2-4 identifies potential federal, state, and other stakeholders who could have requirements that affect wetland mitigation projects. Federal State Other Stakeholders FAA State Aviation Agency Municipal Agencies USACE State Environmental Agency County and Regional Agencies USEPA State Department of Fish & Game Native American Tribes and Councils USFWS State Threatened & Endangered Species Agency Environmental Advocacy Groups US Department of Agriculture State Historic Preservation Agency General Public NMFS Source: The research team from data included in Appendix B. Table 2-4. Potential federal, state, and other stakeholders.