With the help of experienced professionals, an on-site mitigation project can be designed to allow for development in areas of low-quality wetlands, while also preserving, expanding and enhancing areas of higher quality wetland.

pulled the contractor off the job and told him I didn't know when he'd be back on it, the Corps person called back and said:

"Yes, it may be true that you didn't known the area was wetland but you have still violated Clean Water Act regulations.

"No, I don't know exactly where or how large the wetland is: you will need to have a delineation done for the property.

"We may require you to restore the site, or get an after-the fact permit. If you are going to get an after-the-fact permit, mitigation for the filled wetland will probably be required.

"No, we don't know how much the mitigation will cost, since we don't know how much wetland was impacted and what kind of wetland it was, but mitigation ratios of2:1 or higher might be required"

After I hung up and thought over what the Corps person had told me, I began to see that he had used phrases such as "I don't know," "might be," and "probably" a number of times. The only thing that was clear was that I was going to need to get some help, and what was mitigation anyway?

After completion of the project, twelve months later, I have learned that there were actually four wetlands on the Strauss property, and that two of them were of "exceptionally high quality" We had unknowingly built the parking lot over part of one of the low quality ones (thankfully!), but the fill we had planned for the picnic pavilion area in the woods would have gone into one of the exceptionally high-quality wetlands.

I learned that just because most of the site was dry when construction started in July didn't mean that there were no wetlands. I've learned that a wetland doesn't have to be in a low, depressional area; we avoided filling a "side-hill seep" by moving our pavilion, which originally was going to be built on a gentle side slope. Also, I've learned about terms like on-site mitigation," "ecological restoration," and "prescribed burning," and that some of these terms can be associated with pretty large price tags. In retrospect, I wish I would have known more about the whole wetland issue before we started any construction. We could have saved ourselves months of delay and a lot of unnecessary expenses.

The Moral of the Story

The U.S. Army Corps of Engineers (Corps) has authority under Section 404 of the Clean Water Act to permit the discharge of fill material into any "jurisdictional waters" within the United States. These areas may include rivers, streams, lakes and isolated wetlands. Because wetlands are perhaps the most obscure of the areas over which the Corps has

jurisdiction, it is very important to know exactly where a wetland is on a property before beginning site development.

A wetland delineation conducted by an experienced and qualified consultant will provide the location of wetlands on a property and technical information supporting the location of wetland boundaries. An accurate wetland delineation also will help to prevent situations such as that described in the preceding story.

After wetlands have been identified and located on the site, a decision must be made as to how they will be integrated into a land plan. If it is necessary to fill a portion of a wetland, issues of permit authorization will need to be addressed. The Corps has issued general permits, including nationwide and regional permits, which are designed to expedite the processing of permits for minor and noncontroversial projects that are similar in nature and of minimal environmental impact. Currently, 39 nationwide permits have been issued. They became effective on February 11, 1997, and will expire on February 11, 2002, with the exception of nationwide permit 26 (N""P 26), which will expire on September 15, 1999. NWP 26 permits discharges of dredged or fill material into headwaters and isolated waters and wetlands. Activities that impact less than 3.0 acres of wetland are generally covered by NWP 26. For impacts to less than 0.33 acre, the Corps should be notified of the activity within 30 days of completion of the work, although pre-construction notification is strongly recommended. Activities that impact between 0.33 and 3.0 acres of wetland are generally covered by NWP 26, after the required preconstruction notification has been approved by the Corps.

These activities also require "compensatory wetland mitigation." Compensatory mitigation is simply replacing the wetland which is to be filled by converting an area of non-wetland to wetland. Impacts to wetlands of greater than 3.0 acres require an individual permit, which require greater scrutiny of the project proposal by the Corps, other concerned government agencies, and the general public.

Usually, compensatory mitigation is required at a minimum ratio of 1.5 to 1. This means, for example, that filling 1 acre of wetland will require 1.5 acres of wetland to be created elsewhere. This wetland mitigation may consist of on-site mitigation, where replacement wetland is provided on the same site as the impacts occurred.

Mitigation also may mean purchase of wetland mitigation "credit" in an area specifically built to provide mitigation credit (such as a "wetland bank"). In some cases, partial mitigation credit also may be given for ecological enhancement efforts in an existing