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History. The U.S. Army Corps of Engineers (USACE) began regulating wetlands in the 1970’s as a portion of their duties to regulate navigable waters or “waters of the U.S.”. They were initially responsible for bridges, dams, dredged canals, etc., but were later thrust into management of water quality and wildlife habitat that was considered important for these waters in relation to interstate commerce. In other words, any functions or values of a wetland was assumed to have value beyond state lines and thus considered a function regulated by USACE under the premise of Interstate Commerce. As the regulatory program adjusted for these new duties, the USACE began to overstep the contiguous wetland boundaries with their sights on regulating isolated wetlands. Although these isolated wetlands had no surface hydrologic connections to “waters of the U.S.” they still exerted jurisdiction. How could the Corps then regulate wetland areas that were clearly isolated? Simple, they reasoned: Interstate Commerce. Migratory birds became the primary agent for the claim of jurisdiction on isolated wetlands. For example, if a duck that roosted in an isolated Georgia cypress pond flew to Kansas and was shot by a hunter, then the Georgia wetland affected interstate commerce and is thus jurisdictional. As far fetched as this seems, many dollars have been spent across the U.S. applying and negotiating for permits and performing costly mitigation throughout the 1980’s and 1990’s on this account. This assertion became a basic assumption that gathered all isolated wetlands into Corps jurisdiction.

Finally, through persistent litigation, one plaintiff prevailed. The U.S. Supreme Court ruling on Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers (known as the SWANCC Case) was rendered on January 9, 2001, and determined that the Federal government was never authorized to assert jurisdiction on isolated, non-navigable, intrastate waters, based solely on their use by migratory birds.

So what does this mean for Corps jurisdiction on isolated wetlands? Frankly, confusion, as the interpretation changes and fluctuates almost weekly. Many highly conservation-minded Corps personnel have used any potential surface water connection such as upland-cut ditches to make their “connection” to waters of the U.S. In one instance, approximately 250 feet of shallow road-side swales, with maintained sod lawn, and 5 driveway culverts in a permitted subdivision was considered a connection.

Another term that many people forget in the regulations is the word “adjacent”. A wetland area may be completely isolated hydrologically, however, if it is separated from surface waters by a road, dune, river berms, or other man-made or natural barrier, the wetland is considered adjacent and thus jurisdictional. The current Corp interpretation of this concept includes all wetlands that come within 200 feet of a water of the U.S. (not a wetland), regardless of the nature of the upland that separates them.

So how is isolation and adjacency interpreted now? The current interpretation, as of this writing, is as follows:

q If a wetland is within 200 feet of an ordinary high water mark (OHW) or mean high tide line (MHW) of open waters associated with “waters of the U.S.” (not other wetlands), then it is jurisdictional.

q Open waters in the item above refers to any flowing or standing water (including upland-cut and road side ditches).

q An upland cut ditch draining a wetland must display one or more of the hydrological indicators listed in the 1987 Corps of Engineers Delineation Manual to be considered a hydrological connection.

Problems with this current interpretation involves the distinction between wetlands and surface waters. Some interpretations and past studies assert that 10% minimum vegetative cover in any vegetative stratum is sufficient to be considered a wetland rather than a surface water. Other problems may involve interpretation of surface hydrology indicators used to determine the OHW lines.

Official guidance from EPA and USACE headquarters is pending. Until then, the interpretation of wetland isolation and adjacency will be fluctuating almost weekly. If you have an issue that involves a potentially isolated wetland please call us for the latest interpretations.

Do you have a current, future, or past project in Georgia? Isolated or non-adjacent wetlands in Georgia have no jurisdiction at all. Unlike Florida, the State of Georgia does not regulate freshwater wetlands. Therefore, isolated wetlands can be impacted or altered at the will of the property owner. If you have a current or past project in which the wetland delineation and /or permitting was done prior to the SWANCC Case of 2001, then you may be able to reclaim some of your land. Call Lee Gerald at (800) 435-0049.

Florida Department of Environmental Protection (DEP) had been operating under their own interpretations of 373 F.S.: however, recently, DEP has formally adopted the Applicant’s Handbook used as guidance by the St. Johns River Water Management District (the District). The Applicants Handbook discusses all administrative, procedural, and technical aspects of the Environmental Resource Permit program including stormwater permitting.

Therefore, you should see a significant difference in the way DEP processes permit applications. For example:

q DEP is getting serious about requiring a minimum 10:1 mitigation ratio for wetland preservation. DEP is also requiring more formal documentation in the form of biological assessments to scientifically assure that the mitigation is sufficient to offset the wetland impact.

q DEP is now requiring a 25-foot average (15-foot minimum) upland buffer around impacts to assure against secondary impacts to wetlands.

q DEP is formulating their own interpretation of wetlands that have regional ecological value (regional significance) for mitigation purposes.

The changes mentioned above may only be the beginning as DEP studies and implements more portions of the Applicant’s Handbook.

Due to an increase in the value of conservation lands, mitigation costs to compensate for the development of gopher tortoise habitats increased earlier this year. Developers will now have to pay $304 dollars more per acre to build within the sand hill and upland habitats occupied by the armored herbivores. Developers are required to pay the per acre fee on a portion of the impacted habitat areas. The amount of habitat that must be mitigated is based on tortoise density present within the development parcel. the $4637.00 per acre fee will be deposited into a land acquisition account managed by a subcontractor of the State of Florida. The funds will be sued to purchase large tracts of gopher tortoise habitat away from the pressures of development and set aside for the perpetual preservation of this species of special concern.

LG² Environmental Solutions, Inc. presented a booth at the 36^th Annual Construction Trade Show, April 22, 2003. The Trade Show was a great success with thousands of viewers. Most of the LG²ES staff was available to meet many new builders and land developers who came to socialize and learn of new products and services in the industry. Many visitors participated in a drawing for a $50 gift certificate to Longhorn Steakhouse. Mr. H. E. “Hank” Lengfeller, of A. J. Johns, Inc. won the drawing.

Since January, almost all permit applications to the U.S. Army Corps of Engineers that involved a water dependent activity, located in areas of heightened scrutiny for manatees, had been held back. Until recently, approximately 1200 to 1400 water related permit applications were being held in areas that provide “inadequate protection” for the Florida Manatee. All water related projects, including single-family boat docks, required “formal consultations” with U.S. Fish and Wildlife Service, which included a “biological opinion”. Although biological opinions were required, there was some uncertainty about what a biological opinion was to encompass. Biological opinions were usually required only for major water related projects such as marinas. With the addition of this new requirement, FWS did not have a method for administering the program. As a direct effect, no single-family docks were being permitted while the USFWS attorneys were debating the components of a single-family dock biological opinion.

With pressure from the Florida Marine Contractors Association (FMCA), Florida Chamber of Commerce (FCC), businesses, and residents, the USFWS confirmed its intentions to release hundreds of marine construction permits being held on March 21, 2003. A “batch template” was developed that would allow staff to deal with the “formal consultations” and in turn, increase the issuance of permits.

As for the USFWS Takings Permit, the USFWS has decided to withdraw its proposed regulations to authorize “takings” of the Florida Manatee under the Marine Mammal Protection Act (MMPA). A news release from the North Florida Field Office of USFWS stated that it is unable to authorize the incidental, unintentional “takings” of a small number of manatees under MMPA because of substantial comments and new information that raised concerns during the rule making process. According to the Service’s Southeast Regional Director Sam Hamilton, USFWS is unable to conclude that incidental takings would have a negligible impact on any of the four stocks of Florida Manatee. The service will continue to follow the Section 7 regulations and policies and ensure any project that may affect manatees and could result in take are thoroughly reviewed, while assuring at the same time projects are not unnecessarily delayed where takings are not reasonably certain to occur.

Therefore, boat dock permits, bulkhead permits, and other similar project applications, are now allowed to proceed as they were prior to the “hold-up” of water-related project applications. However, we expect this issue to surface again in the next year or two after more research is done and the concept of a negligible effect on the manatee population can be accurately defined.

LG² Environmental Solutions Inc. announces the start of LANDBANK Resource Realty, a new company, designed to broker properties of value for mitigation purposes. LANDBANK Resource Realty will help you determine the potential value of your property and will list it on their web page (see the current list of properties on www.lg2es.com). This list is seen by nearly all land developers and builders in Northeast Florida. Lee Gerald, Licensed Real Estate Broker, specializes in properties previously considered de-valued due to environmental constraints on development. If you have any questions about your property and how LANDBANK Resource Realty can help you, please call Lee Gerald at (800) 435-0072.

Mr. Ryan Spohn, Senior Biologist, will be operating our branch office in South Georgia. The office, currently located in Kingsland, will be moved to a new location in Brunswick, Georgia. We at LG²ES are very excited about our office in Georgia and we are excited about the possibilities that will in no doubt come under Ryan’s leadership in that office.

The Florida Fish and Wildlife Conservation Commission (FWC) still has public harvest units available for the annual 2003 alligator harvest. FWC began accepting applications May 1 from hunters who would like to harvest alligators during the season that includes one week in September and the first week of October. The permits are issued randomly to those who submit a completed application and permit fee. This year’s harvest will not only include the specific area harvest units but also the countywide harvest units. The countywide units will allow hunters to trap two gators within publicly accessible waters within their specified county. According to Harry Dutton, head of the FWC’s Alligator Management Section, “Countywide permits should be especially appealing to private landowners who would like to harvest alligators on their property, but who have not been able to qualify for the Private Lands Alligator Management Program.”

Three hour training courses will be offered during the summer around the State to orient hunters with the permissible trapping methods. Harvesting hours are from sundown to sunup during the specified harvest week. More information and copies of the application can be found at the Alligator Management Program web site at http://www.wildflorida.org/gators/Default.htm. Get your applications in soon as spaces are going quick. It should be a fun week out on the water and a good opportunity to grab some gator tails.

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A Newsletter of LG² Environmental Solutions, Inc.

Volume 1 Number 2	April/May 2003