Frequently Asked Question

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.

Perennial streams are considered Waters of the US (WOTUS) and are always jurisdictional. It often takes a professional environmental consultant to determine if an intermittent or smaller stream is a jurisdictional WOTUS. The presence of an Ordinary High Water Mark (OHWM) and connectivity to a downstream Relatively Permanent Water (RPW) are often the primary determining factors. An OHWM is typically defined by a line or mark along a stream channel which indicates a continuous flow for an adequate duration of time to develop the necessary stream characteristics and functions. Jurisdictional streams must typically score 19 or higher on the NCDEQ SWITC Form.

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.

Compensatory mitigation under CWA permits is required if minimum thresholds of impacted jurisdictional areas are exceeded. In NC, the standard wetland threshold is 0.02 acre for streams. If you impact more than that you will need to satisfy mitigation obligations. In some counties, such as Mecklenburg, thresholds are lower.

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.

A qualified environmental consultant can typically determine if there is 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.

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.

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.

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.

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.

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.

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) and Schweinitz Sunflower  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.