Q) How do I know if I have regulated wetlands on my property/project?
A) Areas that are considered jurisdictional wetlands (government-regulated) must possess characteristics for three distinct variables. Those variables include 1.) the type of plants 2.) the classification of soil 3.) and the presence of water long enough and close enough to the surface to support wetland vegetation. It typically takes a professional wetland scientist to accurately assess the presence and/or absence and limits of jurisdictional wetlands.
Q) How do I know if I have regulated streams or creeks on my property/project?
A) Much like delineating jurisdictional wetlands, it takes a professional environmental scientist to accurately assess the presence of regulated flowing water courses. The presence of an ordinary high watermark (OHWM) is often the key to assessing jurisdiction on smaller streams. The OHWM is typically defined by a line or mark along a channel which indicates that water flows for at least 60 consecutive days during a one-year period.
Q) How do I know if I need a permit from the government to build my project?
A) In most states, if you are disturbing jurisdictional streams or wetlands you may need a Section 404/1 Clean Water Act (CWA) Permit from the US Army Corps of Engineers (Corps) and the state environmental agency. In NC it is the Department of Environmental Quality – Division of Water Resources (NCDEQ-DWR). If a project exceeds the current minimum thresholds, you will need a permit or you will be breaking the law. Breaking these laws can carry stiff fines and penalties.
Q) What is mitigation and when do I need to worry about it?
A) Compensatory mitigation under CWA permits is required if minimum thresholds of impacted jurisdictional areas are exceeded. In NC, the standard wetland threshold it is 0.1 acre and 150 linear feet for streams. If you impact more then that you will need to satisfy mitigation obligations. In some counties, such as Mecklenburg, thresholds are lower.
Q) How do I satisfy mitigation obligations?
A) There are three primary ways to satisfy permit-related compensatory mitigation requirements. The federal mitigation rules passed in 2008 clearly set a preference for the various types of mitigation. The first option should always be approved mitigation bank credits if they are in-kind (similar in nature) and in the bank’s service area. The second option is payment into an approved in lieu fee program (ILF) which is usually operated by a local government or non-profit organization. The last option is permittee responsible mitigation (PRM) which is done by the permit applicant or their consultants.
Q) How do I know if mitigation bank credits are available and how much they cost?
A) A permit applicant can go on the Corps sponsored website known as RIBITS (www.RIBITS.usace.army.mil) which lists all the US mitigation banks and ILF's and their credits per Corps District. In NC, the state also has a website (www.NCDEQ.nc.gov) which lists all banks and their contacts. You can also ask the agency permit manager who is issuing your permit. Once you determine that a bank has credits in your area, you must contact the mitigation banking company to request prices and availability. Your permit consultant/agent, such as MMI, will help you through this process.
Q) What about ILF Payments?
A) Each state is a little different. In NC, you must determine the amount and type of mitigation that the agency is requiring through the permit process and then you must ask the NC Division of Mitigation Services (DMS) for availability and price. You can only utilize this ILF if mitigation bank credits are not available.
Q) What type of environmental credits can you buy in NC?
A) Depending on the watershed you are in, you can purchase: riparian wetland; non-riparian wetland; warm, cool, cold water streams; riparian buffer and nutrient offsets for Nitrogen and Phosphorous.
Q) When would you need to purchase nutrient offset credits?
A) In certain watersheds in NC such as the Neuse, Cape Fear and Tar Pam, water quality is closely regulated and stormwater management requirements often exceed onsite availability, so the state allows new developments to “buy down” lbs. of nitrogen and/or phosphorous which can’t be completely treated onsite. Your county or municipality may require these credits before issuing a building or zoning permit. Discuss this with your civil engineer and/or environmental consultant.
Q) How do I know if my land would be suitable for a mitigation bank/project?
A) You need to have a site assessment done by a qualified consultant or mitigation banking company. If there is potential, you should have a feasibility study done which tells you the cost of developing the mitigation credits, the value and duration of sales. That may cost several thousand dollars.
Q) How do I know if I have a threatened or endangered plant or animal on my property/project?
A) A qualified environmental consultant can typically determine if you are in an area of potential habitat but the US Fish & Wildlife Service (USFWS) and the NC Wildlife Resources Commission (NCWRC) must make a final determination if there is jurisdictional habitat for a listed species. You must consult with the USFWS under Section 7 of the Endangered Species Act (ESA) if you might impact federally listed species or their known habitat. You may also have to get a “take” permit if you need to impact known habitat which may also require compensatory mitigation.
Q) What species are listed in the Carolina’s?
A) The are many listed species in the Carolina’s but the major issues are with newly listed bat species which cover many western counties. In the coastal areas the red cockaded woodpecker is an issue and in the Charlotte area freshwater mussels (Carolina heelsplitter) have limited development in several sub-watersheds. Your environmental consultant can help you determine what species are in your county and if you need to consult with the USFWS.