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ALL APPROPRIATE INQUIRY: THE EVOLUTION OF THE PHASE I ENVIRONMENTAL SITE ASSESSMENT
Jurisdictional wetlands are protected under the Clean Water Act (CWA) as waters of the United States. Sections 401 and 404 of the CWA require the assessment of the function and quality of wetlands in order to determine whether to permit the destruction or degradation of a wetland and to determine the appropriate level of mitigation that should be required. Regulated construction projects such as those involving the proposed filling, dredging, or draining of jurisdictional wetlands typically require permitting. Section 404 of the CWA gives the Army Corp of Engineers (COE) jurisdiction over projects affecting wetlands and to permit certain activities in wetlands. Section 401 of the CWA gives the U.S. EPA jurisdiction to prohibit wetland activities that impact water quality or have unacceptable environmental consequences. However, the U.S. EPA in most cases designates this authority to the state level. Both the COE on the district level and applicable state agency work in a joint effort on the permitting process. The COE and U.S. EPA offer initial permitting guidance through the "Managing Environmental Responsibilities" manual. The most applicable sections include: "Section IV - Dredge and Fill/Wetlands (Section 404) Permitting Requirements" and "Section II - Dredge and Fill/Wetlands (Section 404) Self-Audit Checklist." These provide a great starting point for those addressing wetland issues for the first time.
The COE in general has jurisdiction regarding the identification and delineation of wetlands potentially subject to the CWA Section 404 and associated permitting. The COE will review projects affecting wetlands and will either permit, deny, or condition certain activities within wetlands. Their responsibilities also include evaluating alternatives, mitigation, and public review. They can also determine whether other environmental related laws are applicable to the proposed project such as the Endangered Species Act or the National Historic Preservation Act. Permits are issued on an individual or general basis. General permits are designed to cover common activities such as residential, commercial, and institutional development (NWP 39). Individual permits are designed to address unique projects and generally require more effort. The COE will not issue a permit until the state grants a 401 Certification.
The COE provides primary wetland guidance in the "Corp of Engineers Wetlands Delineation Manual" (Environmental Laboratory 1987). The objective of the manual is to provide methods to identify and delineate wetlands potentially subject under the CWA Section 404. Their approach evaluates three parameters including soils, vegetation, and hydrology in routine or comprehensive applications. The manual includes parameter descriptions, methods, and resource references such as hydric soil lists and wetland vegetation lists. An online version of this manual is available through the COE. Additional resources such as Federal and Ohio Wetland Inventory Maps and the "Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks" are available on line as well. Beware that the COE wetland criteria has been subject to much debate over the years and can technically be different than the classification systems used of other federal and state agencies such as the the Fish and Wildlife Service.
State agencies under the authority of the U.S. EPA have jurisdiction over assessing the quality, function, and categorization of wetlands under CWA Section 401 and designate activity approval by granting a 401 Certification. They review the wetlands and proposed permit activity for potential water quality and other environmental impacts. However, their methods and regulations vary, so check for state and even local specifications. Many of these agencies offer training workshops to streamline the assessment and permitting process within their jurisdiction.
In Ohio for example, the Ohio Environmental Protection Agency (OEPA) uses the "Ohio Rapid Assessment Method for Wetlands, v 5.0" (OEPA 401 Wetland Ecology Unit, 2001) to assess the quality, function, and categorization of wetlands. The OEPA offers a workshop on the method. The method is not intended to delineate a jurisdiction wetland rather it is intended to identify the appropriate level of regulatory protection a particular wetland should receive and not its human or ecological value. An online version of this method including a guidance manual and scoring forms are available through the OEPA. Follow this link for other information about the Ohio 401 Water Quality Certification program including recent regulation changes.
Professional identification, delineation, assessment, permitting, and mitigation of wetlands is recommended for regulated wetland activities. Professional certification is an evolving mechanism to ensure the qualifications and competency of the professionals performing these tasks. Currently several states are implementing initiatives or proposed certification legislature such as in Minnesota, Wisconsin, and Virginia. Still other states are reviewing applicability of certification under established professional programs such as Professional Soil Scientist or Hydrologist. Regional certification is also emerging such as in Lake County, Illinois. However, there are no encompassing certification programs. Historically, the COE proposed and evaluated certification on a district level in 1995, but never matured into an accepted program. Currently, the Society of Wetland Scientists has a Professional Wetland Scientist Certification program that is widely recognized as a credible source for qualified wetland scientists on a national basis. The Wetland Delineators Association and your state agency are also other sources for qualified professionals.
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