3.3 WETLANDS

Wetlands are an integral part of the ecosystem that is key to the quality of life. It is important that all federal agencies provide for the protection of this resource. As part of the environmental assessment process it is important to define the scope of the project, determine if the action will have an effect on any and all wetlands and determine if there are any alternatives to any potential impacts. To do this, consult with other Federal and State Agencies that are responsible for wetland delineation and oversight. Furthermore, it is important to understand that certain programs will have differing requirements for the protection of wetlands.

USDA is required by numerous laws to protect wetlands in implementation of its various programs. Executive Order 11990, Protection of Wetlands; Section 363 of the Consolidated Farm and Rural Development Act (CONACT), the Clean Water Act, USDA Departmental Regulation 9500-3, Land Use Policy, Public Law 99-198, Food Security Act of 1985, Wetland Conversion, and applicable sections of the 1990 Farm Bill are the primary laws governing how USDA must assess whether proposed actions will adversely affect a wetland.

The US Army Corps of Engineers has regulatory authority under the Clean Water Act, Section 404, as discussed in Section 5 of this document, "Flood Plains."   Rural Development will not provide financial assistance or provide project approval if wetland conversion is involved. The only exception is if there exists a demonstrated significant need for the project and there are no practicable alternative actions or sites, and then conversion must be minimized and mitigated. Wetlands protected are those areas that are inundated by surface or ground water with a frequency sufficient to support and, under normal circumstances, do or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas, such as sloughs, potholes, wet meadows, river overflows, mudflats, and natural ponds.

Section (a)(16) of the Food Security Act, Public Law 99-198, December 23, 1985 defines a wetland as:

The term “wetland”, except when such term is part of the term “converted wetland”, means land that has a predominance of hydric soils and is inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

Section 363 of the CONACT prohibits using any loan funds to adversely affect a wetland.  This statutory language is considerably more restrictive than that of the Executive Order, which requires that wetland impacts be avoided whenever a practicable alternative is available.  A wetland impact which might be allowed under the Executive Order is likely to be prohibited under Section 363.   Section 363 reads as follows:

The Secretary shall not approve any loan under this title to drain, dredge, fill, level, or otherwise manipulate a wetland (as defined in section 1201(a)(16) of the Food Security Act of 11985 (16 U.S.C. 3801(a)(16))), or to engage in any activity that results in impairing or reducing the flow, circulation, or reach of water, except in case of activity related to the maintenance of previously converted wetlands, or in the case of such activity that is already commenced before November 28, 1990. This section shall not apply to a loan made or guaranteed under this title for a utility line.

For all programs/actions that involve ground disturbance activity, where no wetland determination has been made, the environmental document preparer should:

• Review the National Wetland Inventory map. http://www.fws.gov/nwi/

 (National Wetland Inventory Maps can be ordered by calling 1-800-ASK USGS).

• Review soils maps to determine if hydric soils or soils with hydric inclusions are on the site (available at the local NRCS office).

• Conduct field visits to visually inspect the area. Observe the vegetation for any species unique to wetland areas and take digital photos.

• Document the findings

For all programs, if the action/project involves construction or other ground disturbing activity in an area with hydric soils, a 'wetland determination' by a qualified person may be needed prior to completing the environmental assessment.

The purpose of this determination is to ensure that the proposed activity will not adversely affect any wetlands within the Area of Potential Effect (APE). For utility (RUS) projects, lines will be installed in compliance with USACE general permits further delegated down to the states, and the conditions of the permits assure no adverse effect on wetlands, due to required restoration, etc. This should be explained in the ER. Normally wetland delineation is not required. If the action/project involves the construction of a structure or other ground disturbance activity within or immediately adjacent to a wetland area, 'wetland delineation' will be required. The purpose of the delineation is to determine the limits of wetland area, eliminate or reduce disturbance to wetland and develop mitigating measures for the protection of wetland.

Procedures for evaluating pending Rural Development actions which could impact wetlands, as defined by E.O. 11990, are similar to those for floodplain analysis as previously discussed.  Additional Federal Agency oversight is involved since

wetlands also fall under the jurisdiction of the U.S. Environmental Protection Agency (EPA) as well as the U.S. Army Corps of Engineers (COE) from a Clean Water Act (CWA) perspective. Potential impacts to wetland areas are normally reviewed by the COE for projects requiring a CWA Section 404 permit for dredge and fill operations in waters and wetland areas covered by the CWA.

Basic Steps in Evaluation:

1. Identify the protected resource.  Examine the collected data and initiate consultation with appropriate technical experts to determine whether the protected resource is involved.  For floodplains, FEMA provides technical expertise; for wetlands, it is usually the NRCS.

2.  Identify the potential for conversion of the protected resource – that is, if the proposed action is implemented, what is the potential impact (direct, indirect, and/or cumulative) on the protected resource?  If there is no potential for conversion, a determination of no effect can be made.  If the resources are not present, or if they are present, but there is no potential for impact, document those facts, but be clear and be brief.  Our focus should be on the important issues.

          Note:  Current regulations also permit a determination of no effect to be made, if it is determined that the impact of the proposal is minimal – to the extent that the natural values and function of floodplain or wetland are not affected.  This is sometimes referred to as a “Threshold of Impact”, it is used primarily for small creek crossing by utility lines.  In other words, if a utility line is crossing a narrow floodplain/wetland, such that the potential for indirect impact (i.e. growth within the floodplain/wetland) is minimal, and the potential for direct impact is also minimum (i.e. the line will be buried, and the floodplain/wetland soils and vegetation restored), we may document this fact and make a determination of no effect. 

3.  If there is a determination of possible effect – that is if there is a potential for impact on the protected resource, inform the public, as required.  The Executive Orders both contain a requirement for early public review and comment.  The guidelines state:  “The objective of public involvement is to provide sufficient information early enough in the process of making decisions affecting floodplains (and wetlands) so that the public can have an impact on the decision outcome.”  This requirement for early public review and comment is further supported by Department Regulation 9500-3, which covers floodplains and wetlands, as well as Important Farmland.  Current regulations fulfill this requirement through a “Preliminary Public Notice” and it has a 30 days public comment period for Class I, Class II and EA actions.

4.  If there is a potential for impacts on the protected resource, identify practicable alternatives which will either avoid or minimize the impacts.  If there is a determination of possible effect, can the potential impacts be avoided through selection of a practicable alternative?  The Guidelines for the Executive Orders identify the types of alternatives which, at a minimum, must be evaluated.

This determination requires the agency to consider whether the “ ...floodplain (or wetland) can be avoided either through alternative siting; through alternative actions which would perform the intended function, but would minimize harm to or within the floodplain (or wetland); or by taking no action.”

When mitigation measures are developed for floodplains and wetlands, they should be designed to support the three goals of the Executive Orders:

-Minimize the loss of property due to flooding

-Minimize the loss of life due to flooding and,

-Restore/preserve the natural values and functions of floodplains and wetlands

5. Reevaluate the proposed action (and its potential for impact) in light of the available alternatives (and their potential for impact).  Predict environmental consequences.  Cross-reference supporting documentation from technical experts.  Present the information clearly and concisely.  Your readers should be able to understand clearly what the choices are and what the environmental consequences of each of those choices are expected to be.

6. Make a decision and inform the public, as required.  If it is determined that there is no practicable alternative to the direct or indirect conversion of a floodplain or wetland, the Executive Order require a written statement of findings and a public explanation be given of the rationale for the proposed action.  This is in addition to the opportunity for early public review and comment mentioned above.

Three Federal agencies, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency are charged with the primary oversight of wetland delineation and protection for wetlands not located on private farmlands. The National Wetlands Inventory (NWI) of the U.S. Fish and Wildlife Service produces information on the characteristics, extent, and status of the Nation’s wetlands and deepwater habitats. This information is used by Federal, State, and local agencies, academic institutions, U.S. Congress, and the private sector.

The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency are tasked with delineating and helping to conserve wetlands with respect to the Clean Water Act. The U.S. Army Corps of Engineers may be consulted with respect to actions affected by the COE’s Dredge and Fill Permit Program (Section 404 of the Clean Water Act).

Wetlands are dispersed throughout the state, although they are

primarily associated with lakes, rivers, streams, and coastal

areas. The US Fish and Wildlife Service has an ongoing

nationwide effort to identify, classify and map wetlands.  These

National Wetland Inventory (NWI) maps are produced at a 1 to

24,000 scale on the same indexing system as used by USGS

topographical maps.

These NWI maps are available from: http://www.fws.gov/nwi/mapper_tool.htm

      http://www.nwi.fws.gov/

For Applicants and Consultants:

NWI maps may be purchased from the FWS; see the above FWS Web Site for ordering information and prices. Cost of each NWI map has been $2.50, plus shipping ($2.00 per order); call ahead to determine availability and total cost. The order form for NWI maps from the above DSL Web Site may also downloaded.

Digitized NWI maps may be downloaded from the national FWS Web Site (organized by USGS quad name): http://www.fws.gov/nwi/

Hydric soils maps: http://soils.usda.gov/

Agency Jurisdiction: State and Federal Level: Normally, contact with these agencies is only necessary if there may be an adverse impact.

Potential Information Sources

Federal                United States Fish and Wildlife Service

177 Admiral Cochrane Street

Annapolis, Maryland 21401

(410) 573-4500

U.S. Department of the Interior (USDOI)

Fish and Wildlife Service, Field Office

1825 Virginia Street

Annapolis, Maryland 21401

(301) 269-5448 (maintains a Wetland Inventory)

District Engineer, U.S. Army Corps of Engineers

Baltimore District, P.O. Box 1715

Baltimore, Maryland 21203(410) 962-4545

Pittsburgh District Office:

Permits/Wetlands/Regulatory:  (412) 395-7152

U.S. Environmental Protection Agency-Region 3

                           1650 Arch Street (3PM52)
                            Philadelphia, PA 19103-2029 

For information regarding contacts within the Mid-Atlantic Region please dial either:
215-814-5000 (Main Business Number)
or
1-800-438-2474 (When calling from within the region)
http://www.epa.gov/

U. S. Fish and Wildlife Service

http://www.fws.gov/nwi/

Full text of Executive Order 11990:

http://www.usda.gov/rus/water/ees/toc.htm#Statutes

Additional wetland information, including maps and aerial photographs, are available from local Natural Resource Conservation Service Offices and/or County Planning Offices.

          Delaware   Department of Natural Resources and Environmental Control

Division of Water Resources

P.O. Box 1401

89 Kings Highway

Dover, Delaware 19903

(302) 739-4691

                             http://www.dnrec.state.de.us/DNREC2000/WaterResources.asp

Maryland   Department of Natural Resources

Chief, Tidal Wetlands Division

Tawes State Office Building, Annapolis, MD    

21401

(410) 631-8075  (410) 631-8094

MDE, Water Management Administration

2500 Broening Highway

Baltimore, Maryland 21224

Wetlands permits/regulations Gary Setzer

410-631-8091

                             http://websrvr.mde.state.md.us/wma/

Governing Regulations.

(1) U.S. Executive Order 11990, Protection of Wetlands.

(2) U.S. Executive Order 11514, Protection and Enhancement of Environmental Quality.

(3) U.S. Department of Agriculture, Departmental Regulation 9500-3, Land Use Policy.

(4) Title 7, Part 1b and 1c, Code of Federal Regulations, U.S. Department of Agriculture’s National Environmental Policy Act.

(5) National Environmental Policy Act, 42 U.S.C. 4321.

(8) Clean Water Act, Section 404, Dredge and Fill Permit Program.

(7) Food and Security Acts of 1985, 1990, and 1995 (Farm Bills).

The Mid-Atlantic Hydric Soils Committee Web Page

http://www.epa.gov/reg3esd1/hydricsoils/index.htm