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Corps Proposes Streamlined Permit Process | Bernstein Named Temp Chief of Regulatory | Briefs | Spotlight | New Mitigation Bank

Corps Proposes Streamlined Permit Process

Last October, the Mobile Corps Regulatory Division published a draft of Regional General Permit SAM-20 for residential, commercial and institutional development within Hancock, Harrison, Jackson, Pearl River, Stone and George Counties. The GP proposed increasing the threshold to qualify for the public notice waiver from a half-acre to five acres of low quality wetland fill, thus expediting the permitting timeline for qualified projects. The public comment period for General Permit SAM-20, which ran from October 10, 2006 to December 10, 2006, generated over 7,500 comments. A combination of consultants, private citizens and public and environmental advocacy groups responded to the proposal with those opposed to the initial requirements of the GP outnumbering those in support of the permit.

Upon review and consideration of the comments received, the Regulatory Division issued a revised permit proposal on February 9, 2007.

"This revised permit proposal takes into account the many comments and concerns we received from the public, Federal, state and local agencies when the regional permit was originally proposed last October," said E. Patrick Robbins, Public Affairs Officer, Mobile District. “The acreage has been reduced from five acres to three, additional exclusion areas have been added, the focus has been confined to residential and institutional development, and federal and state agencies review periods have been added.”

Special conditions outlined in the revised GP include work required for the construction or expansion of residential developments and institutional developments, with residential development defined as single and multi-family developments and Institutional development encompassing schools, fire stations, government office buildings, libraries, public works buildings, hospitals and churches. The proposal also includes attendant features such as roads, parking lots, garages, yards and utility lines that may be involved in the project. Attendant features such as ponds, golf courses and playgrounds would not be covered by the new GP.

Bernstein Named Temp Chief of Regulatory

After a 15 month tenure as Chief of Regulatory for the Mobile District, David Hobbie will now continue his USACE career in Jacksonville, Florida. Hobbie made the move to Jacksonville in February. His temporary replacement, Carol Bernstein, is on loan from the Savannah District Regulatory Division where she has been the Coast Branch Chief for the last five years. Prior to her 13 years experience with the USACE, Bernstein worked as a field biologist, a private sector consultant and with a non-profit membership coalition focused on corporate land stewardship.

In addition to vast experience, Bernstein holds a BS in Renewable Natural Resources from the University of Arizona and an MS from Johns Hopkins University in Environmental Science. She is also registered as a certified Professional Wetland Scientist from the Society of Wetland Scientists.

The selection process for a permanent replacement may take up to four months. In the meantime, Hobbie hopes that the transition is as smooth as possible. With dedicated Coastal regulatory teams and a satellite office located within the DMR offices, he predicts that the permitting process can only become more streamlined and consistent.

BRIEFS

Two New Jersey developers facing more than $1.3 million in fines

The Department of Environmental Protection determined that Beazer Homes developed two acres of wetlands in Mercer County, New Jersey, in excess of that which was authorized by their permit and failed to construct three acres of wetlands to compensate for the loss. In addition to the $630,000 penalty, the DEP is requiring Beazer Homes to return the affected area to its original condition.

In Morris County, Deerfield Estates/Rasamir Estates violated freshwater and stream permits on the site of a housing development resulting in a $763,500 fine. Developers failed to file required deed restrictions and they did not implement approved soil and sediment control measures. In addition, no mitigation credits were bought to offset development and inaccurate plans were submitted when they applied for permits. The DEP has suspended the developers’ wetlands permit and they were ordered to take immediate steps for restoration.

Bulldozing Creek Lands Idaho Developer in Jail

In September 2005, C. Lynn Moses was found guilty of three felony charges for violating the Clean Water Act by knowingly discharging sand, gravel and other fill material into Teton Creek without a permit. Recently, the Idaho developer has been sentenced to 18 months in prison and $9,000 in fines for bulldozing a stream bed and draining wetlands.
By filling the creek with gravel and dirt, Moses altered the waterway and stream flow causing banks to collapse and increasing the likelihood of flooding. Also, as a result, a spawning bed for the Yellowstone cutthroat trout was polluted. The maximum sentence Moses could have received was nine years in prison and $750,000 in fines.

Federal Probation for Highway Engineers

A Montana judge sentenced two state highway engineers to spend a year on unsupervised federal probation for filling more wetlands than permitted. The U.S. Army Corps of Engineers issued the Montana Department of Transportation a permit in 2000 to fill 2.52 acres of wetlands for the project. After encountering a water spring that interfered with construction, the two engineers directed department employees to fill 3.28 acres, exceeding the amount of fill allowed in the permit. The judge determined that the violations should exceed $67,000 in fines, and in turn, the defense attorneys argued that any fine would be a hardship on their clients. Since neither man had any criminal record and there were mitigating circumstances, the judge ruled negligence and sentenced them to federal probation.

SPOTLIGHT

In each issue of The Wetlands Link we will profile individuals or entities that have regular interaction with wetlands and wetlands mitigation issues.

Since 1994 EnviroSouth has provided a wide range of environmental services to the Mississippi Gulf Coast and surrounding areas. Prior to entering into private consulting, Gary Cuevas and Billy Culpepper acquired over 20 years collective experience within regulatory resource agencies. EnviroSouth is a multi-disciplined consulting firm specializing in providing environmental planning, design, and regulatory compliance services to industrial, commercial and individual clients. Some of the services they provide include permitting, wetlands delineations, phase 1 and 2 environmental site assessments, endangered species surveys and environmental real estate . They are dedicated to careful consultation while considering the timeliness of your project. EnviroSouth has also contributed their services pro bono in order to assist with Katrina recovery efforts on the Mississippi Gulf Coast and Louisiana. For more information, please contact Billy Culpepper at 228-518-0905.

Observers of the Coast housing market believe that the immediate demand for affordable housing will continue to go unsatisfied until some relief from time required to secure a wetlands permit is realized.

In an article on MSNBC.com, Jason Steele, a USACE regulatory representative, stated that while the current process for permitting minor wetlands fill is designed to take 120 days or less, the accelerated volume of permit applications, coupled with lower than optimal staff levels, has resulted in the routine permit process taking as long as eight months. While GP 20 would still require Corps approval of a wetlands delineation from an environmental consultant, if the proposed impact is determined to be minimal and in keeping with the wetland quality and acreage thresholds established in the GP the public comment period could be waived, allowing a project to avoid costly and--in the opinion of the GP’s supporters--unnecessary delays. In all cases, mitigation to compensate for unavoidable permitted impacts will be required.

“The Corps has several nationwide permits and Regional General Permits already in place. They don’t alleviate the need for an applicant to follow the rules and regulations,” said Robbins. “The RGP provides an area analysis and says if the applicant has met all the requirements and it has been validated, the 30-day public notice and individual environmental assessment won’t be required. The RGP streamlines the process but doesn’t change the basic requirements. Applicants will still be required to have coastal zone verification and water quality certification from the state”.

Opponents of the new GP argue that the right of the public to comment on proposed projects that impact wetlands is being infringed upon and that the result will be unimpeded and unrestrained development of wetlands. Conversely, supporters of the proposal point out that only the fill of the lowest quality, marginally functional wetlands would qualify for the GP and that very few, if any, public comments are ever received on residential and commercial projects proposing three to five acres of low quality wetland impact. Moreover, mitigation requirements for permitted projects are unchanged, meaning that the only effect on wetlands permitting will be the reduction in the amount of time it takes for applicants to navigate the process.

The revised Regional General Permit SAM-20 comment period closed on March 9, 2007 and the Corps anticipates that GP 20 will be available to applicants very soon.