December 1996
If a determination is made that a proposed development site has wetlands, then an appropriate permit application must be filed with the agency that exercises jurisdiction over the site. In Michigan, permit applications are filed with the MDNR, which makes the initial determination of other jurisdictional authority based on site location and nature of the proposed impacts on wetlands. If the wetland is in a coastal zone, specifically within 1,000 feet of the Great Lakes and connecting waterways, the application is also reviewed by the US Army Corps of Engineers. If the development of the wetland site requires 10,000 cubic yards or more of dredge or fill, 500 feet or more of stream realignment or 100 feet or more of stream enclosure, then the EPA also gets a copy of the permit application and may decide to comment on it.
The permit approval requirements of Section 9 of the Wetland Protection Act are very demanding and place the burden of proof on the applicant. Section 9 requires that other feasible and prudent alternatives be preferred to any alteration of the wetland. If the agency can find even a plausible alternative to the applicant's proposed action, it will deny the permit. Consequently, permit applicants, particularly for complex projects, prepare an Alternatives Analysis setting forth all alternative approaches and demonstrating why they are not feasible.
An Alternatives Analysis is essentially a comprehensive, technical document requiring the contributions of many disciplines, which could include: ecology -- to determine site quality, ecological significance and provide a functional assessment of the wetland, site design -- to present alternative designs, if any are feasible, that avoid wetlands impact, engineering (civil, geotechnical, traffic) -- to consider alternative design/construction approaches.The combined competencies of these disciplines should demonstrate in the Alternatives Analysis document that some wetlands use is an essential part of an optimal solution.
Agency representatives, however, do not always grasp the number and variety of other performance criteria that must be satisfied in a development proposal and reflected as a successful design solution in the proposal. For example, a proposal may include a Remedial Action Plan developed to comply with other state laws such as Act 307 which sets forth procedures for satisfactory site cleanup, but the plan may entail necessary incursion into wetlands to put in an access road or to remediate contaminated soils. Or the proposal may be designed to optimize compliance with certain local master plan, zoning, wetlands, woodlands and watercourse ordinances as well as statutes. But frequently from the perspective of agency representatives the only applicable regulations are the state wetlands protection statutes and rules.
A good example of these conflicting requirements at different governmental levels is the case of a school district that needed to build a new school to accommodate a rapidly growing student population. Projections clearly showed that only a "fast-track" schedule could bring it on-line in time for new students. Moreover, the school had to be located in a certain area in the district; the proposed site was virtually the only alternative. The proposed site was part oak woods and part "ATV and box spring" wetlands, which was fairly dry in late Spring and Summer but did have a stand of cattails.
On the other hand, the oak woods was 50-70 years old, dominated by large trees which were protected by a local ordinance. This wetland was regulated under both state law and a local ordinance. The design of the school required certain standard features, i.e., building envelopes, parking facilities, access roads, sports fields, etc., which made it necessary to develop part of the wetlands.
In their Alternatives Analysis, the school district pointed out that: features of the school design were dictated by state-wide design standards and could not be scaled down; they were prohibited by local woodlands ordinances from cutting down the oak trees unless they replaced them; the oaks represented a 50-70 year natural development, the cattails only a 5-year natural development, and so the oak woods should be preferentially conserved; and they had no feasible alternative to impacting the wetlands. The MDNR, nevertheless, denied the permit at first. The permit, however, was eventually issued after further negotiations and political pressure.
In another case, involving a manufacturing company, the MDNR was willing to grant a permit in accord with its administration of the wetlands statute and rules. The company applied for a permit as part of a remedial action plan for its property to comply with Act 307. It sought to clean up a contaminated site, part of which included a regulated wetland. Since the company was complying with a statute that was public policy and there was no alternative to disturbing the wetland, the permit was granted. However, compensation (per Section 10 of the statute) was required as part of the permit approval and the company had to construct wetland in a nearby upland. Typically, the replacement ratio for such mandated mitigation or compensation is 1 1/2 to 2 times the wetland property affected. The costs for constructing wetlands can range from $10,000 to $50,000 per acre depending on the site. In cases, where wetlands violations have occurred, the agency has stipulated compensation as much as 3 times the wetland loss.
To reduce the risk and uncertainty inherent in any development, especially one with a regulated wetland, it is best to bring together a site development team that includes a qualified ecologist in the earliest stages of the project, and certainly before a final offer is extended. As long as wetlands protection remains public policy, property owners, developers and industries will need to marshal all the knowledge and expertise available to them.
For more information on environmental programs for your business, contact Mr. Thomas Wackerman, Managing Partner at Applied Science &Technology, Inc. at 800.395.ASTI or visit our homepage
Site Assessments are becoming more focused and less expensive each year. Next month we will open the new year with a look at the Phase I process and then discuss the Transaction Screen as a tool for assessing property purchases.
In May of 1997, Applied Science &Technology, Inc. will present a series of breakfast seminars on how the June 1997 expiration of the State moratorium on penalties will impact the purchase of contaminated property in Michigan. For reservations or more information call Lenna Dietrich at 1-800.395.ASTI.
Applied Science &Technology, Inc. staff is presenting a one semester course on Environmental Information Management using the Internet. at Wayne State University in Detroit, Michigan. The course starts January, 1997 and is taught entirely on the Internet. For more information call Tom Wackerman at 800.395.ASTI or send email request to twacker@chem1.eng.wayne.edu
1st Laboratories performing organic or inorganic analysis pursuant to the SDWA may no longer perform such analysis under provision certification. [SDWA: 40 CFR 141, FR 7/1/94]
Owners and operators of oil- or gas-fired units subject to the acid rain program must ensure installation and certification tests for CEM systems for nitrogen oxides and carbon dioxide. [CAA: 40 CFR 75, FR 5/17/95]
Multiple deadlines for sources subject to the the ozone transport and acid rain programs [CAA: 40 CFR 71 and 75]
22nd Any regulated entity that conducts voluntary compliance evaluations and discloses and corrects any violations in accordance with the terms and conditions of the EPA's final guidance on self-policing incentives may avoid the imposition of punitive penalties, criminal charges, and/or enforcement investigations. [CAA/CWA/ CERCLA/RCRA/SDWA/TSCA, FR 12/22/95]
TECH-BITS is a monthly publication of Applied Science & Technology, Inc. (ASTI), P.O. Box 1328, Ann Arbor, Michigan, 48106. For a free mail subscription call 800.395.ASTI. For a free electronic subscription, send an email message to twacker@chem1.eng.wayne.edu, referencing Tech-Bits in the body of the message.
TECH-BITS is intended to provide information concerning current environmental issues, and is not intended to provide technical or legal advice regarding any particular situation. Questions about individual situations should be addressed to your environmental engineer. Copyright 1995 by ASTI