1) What are wetlands and why are wetlands important?
Wetlands, a collective term for bogs, marshes, swamps, peatlands, and other similar areas, are those areas that are inundated and saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. They typically occur in forested areas that receive fresh water at the edges of streams, rivers, lakes, and coastlines.
Wetlands support plants and animals that are able to live on dry land or in the water and those that can live only in a wet environment. Even wetlands that are dry most of the year play an important role, like providing critical habitat to unique species that adapt to breeding in these areas. The existence of all types of wetlands, including most of their biological characteristics, is determined by water: the amount of water that flows in and out, and the amount that is stored there.
The prolonged presence of water creates conditions that assist in the growth of specially adapted plants (hydrophytes) and encourage the development of distinctive wetland (hydric) soils. Wetlands work as a kind of green infrastructure, providing vital ecological services.
Wetland functions include but are not limited to:
2) Why do we have wetland regulations?
Wetlands are recognized as providing important functions to humans and wildlife that are
not easily reproduced through engineering solutions. Between the 1780s and 1980s, over
half of the wetlands in Colorado were lost due to the wetlands being filled and otherwise
degraded.
In Summit County, wetland loss has resulted from historic gold mining and large construction projects such as Interstate 70 (I-70) and Dillon and Green Mountain Reservoirs. In more recent years, construction of single-family residences, as well as other types of development, has resulted in a cumulative and permanent wetland loss in the County.
The development of regulations that regulate activities in wetlands was accomplished so that the important and valuable functions that wetlands provide to humans are not further impaired or lost.
3) Do wetland regulations apply to Single-Family Residence and Duplex lots too?
Presently, Summit County’s wetland regulations (Water Quality Control Regulations– Chapter 7) do not apply to new single-family homes and duplexes on existing lots platted
prior to 1996. However, even for single-family and duplex developments on existing
lots, the County does not allow any soil disturbance within 25 feet of open water (e.g., a
lake, stream or intermittent stream, except when approved by the County Engineering
Department).
In the future, it is anticipated the County wetland regulations will also apply to all platted
and existing lots. Federal wetland regulations on the other hand apply to all lots and do
not differentiate between existing or proposed lots.
4) Do I need a permit to do work in a wetland? How much does it cost?
You need a Department of the Army permit from the U.S. Army Corps of Engineers
(Corps) to do some types of work in wetlands. If you place dredged or fill material in a
wetland, or use heavy equipment to push soil into a wetland, known as mechanized land
clearing, you need a permit from the Corps. Some of the Corps nationwide permits do
not require any pre-notification provided your project adheres to all the terms and
conditions of that nationwide permit. It is strongly recommended you contact the Corps
before proceeding with any work in a wetland that involves the use of heavy equipment,
as the regulations are complex and the regulations change relatively frequently due to
Federal court decisions.
The County wetland regulations are contained in the Land Use and Development Code, Chapter 7 Water Quality Control Regulations Section 7000 et seq. They apply to new developments that may affect wetlands. County regulations require a 25-foot setback as described above for new developments. Even in existing subdivisions or single family and duplex developments, the County requires compliance with Section 404 of the Federal Clean Water Act (wetland regulations) to obtain a grading or building permit.
While the Federal regulations do not require pre-notification of certain wetland activities, the County will very likely require written proof of compliance from the Corps prior to issuance of any grading or building permits. In addition, due to the complexities of the Federal regulations, it is always prudent to contact the Corps field office for verification of your project’s compliance.
The first step in the process is to have the wetlands delineated on your property by a qualified consultant. The Corps will require this step in all permit actions and the County may require it for most approvals. The costs vary tremendously due to the size of the property and the complexity of the wetland boundary. Additional costs will be incurred to survey the boundary and again those costs vary by size of the property and complexity of the boundary.
Once the wetland delineation and survey have been completed, permitting a simple project (e.g. driveway crossing, corner of a building) may cost between $750 to $1,500 in consultant fees, depending on the complexity and conditions required by the Corps. In more complex projects, involving a pre-notification application for a nationwide permit or, for an Individual Permit application, consultant fees may run into the thousands due to the detailed work of alternatives analysis, mitigation planning, and construction supervision. There is no charge from the Federal government for a nationwide permit. Individual Permit fees range from $10 for an individual, to $100 for a corporation. Consultant fees are obviously variable and the costs cited are provided as estimates.
5) How do I find out if wetlands are on my property? If my property has a couple
of willows on it, is it a wetland?
The presence of plants such as willows, sedges and rushes may indicate that a wetland is
present. The County has wetland mapping information that can give you a general sense
if wetlands occur on your property or not. However, to be sure a wetland does or does
not exist on your property, it is advisable to consult with Summit County, the Corps, or a
private wetland consultant and have it delineated.
6) How do I find out the exact location of wetlands on my property?
To find out the exact location of wetlands on your property a wetland delineation must be
performed. A wetland delineation is done by examining a site for the simultaneous
presence of water-loving (hydrophytic) plants, wetland hydrology, and wetland (hydric)
soils. If all three of these criteria occur at the same location, at the same time, then that
area is considered a wetland. Consult a wetlands consultant or the Corps to have a
wetland delineation completed on your property.
7) What are the specific regulations if I build to the edge of a wetland?
Within the County wetland regulations, a 25-foot setback from the wetland boundary
must be maintained in its undisturbed condition, and is only applicable to new lots.
However, the setback may be reduced through the public hearing process and if
disturbance to the wetland areas is minimized (as described in Sections 7104.04, 7105.03,
and 7105.05 of the Land Use and Development Code).
Federal wetland regulations do not have a compulsory 25-foot setback, however, if your project requires a Department of the Army permit from the Corps, the Corps may require a wetland setback or buffer of various widths depending on the development and the types of wetlands present. Current nationwide permit regulations require a 25-foot setback from streams if the project requires nationwide permit authorization. If your project does not require a Department of the Army permit, then there is no Federal setback from wetlands.
8) Can my leach field go into a wetland?
The County regulations for an Individual Sewage Disposal System (ISDS) require that
the actual leach field portion of the system cannot be located in a wetland. The
sideslopes to support an elevated (e.g., mounded) system can be within a wetland, as well
as the tank and sewage lines running from the tank or house to the field. The leach field
must be at least 75 feet from open water, including streams, ponds, lakes and
groundwater discharge points such as seeps or springs.
9) How are the U.S. Army Corps of Engineers and the County’s process similar
and dissimilar?
Wetlands in Summit County are regulated by both Federal and County agencies. The
processes are similar, with many of the same factors considered by both agencies; such as
avoidance of wetland impacts, minimization of wetland impacts, and both require
compensatory mitigation for unavoidable wetland impacts.
The Federal government regulates activities in wetlands through Section 404 of the
Federal Clean Water Act.
Section 404 of the Federal Clean Water Act seeks to insure
that the physical, biological and chemical quality of our nation’s waters, including
wetlands, are protected from activities that could permanently alter or destroy these
valuable resources. The basic premise of the 404 Program is that no discharge of dredged
or fill material can be permitted if a less damaging practical alternative exists, or if the
nation’s waters would be significantly degraded.
The Corps administers the day-to-day program, including permitting, while the EPA
reviews individual permit applications and enforces violations. Nationwide and other
general permits already exist for some activities that result in relatively minor impacts to
wetlands or other waters of the U.S. Individual permits are used when the proposed
activity will result in significant impacts to wetlands or other waters of the U.S. or at the
discretion of the Corps. Obtaining an individual permit may take six months or longer.
For more information contact a regulatory officer with the Corps.
Summit County also regulates activities in wetlands through the Land Use and Development Code. Wetlands are considered a development constraint. Before a subdivision, site plan or grading plan can receive final approval the applicant must show you are in compliance with Section 404 and County regulations. Septic tanks and absorption areas are not permitted in wetlands. Variances in regulations are generally not allowed for septic systems that impact wetlands. Constructed wetlands for sewage treatment may be installed in naturally occurring wetlands only if there is no alternative, and they must be designed by a qualified engineer. Soil disturbance and structures are prohibited within 25 feet of a wetland, except for new single-family or duplex development on lots platted before 1996. For obvious reasons, construction of docks, piers or other such water-dependent activities are also exempt from the setback. Typically wetlands located on a property must be delineated prior to submittal of a County general grading permit. A mitigation plan, which details how the applicant will compensate for the wetland loss is required for any unavoidable earth disturbance within a wetland area. To ensure the success of wetland mitigation for two years, a financial guarantee is required before an occupancy permit can be issued. For more information talk to County Planning Staff.
10) In general – please describe what I need to do to mitigate wetland impacts
and how do I do it?
This is really a site-specific question. The first part of the question assumes that a
landowner has taken all measures (applied for County variances, re-designed buildings,
roads, and their locations, etc.) to AVOID wetland areas. These are the measures the
Corps will evaluate in a project. Compensatory mitigation is actually the last thing the
Corps will look at in reviewing your project. The Corps will not consider mitigating
wetland impacts until you have demonstrated that wetland impacts have been avoided
and minimized to the maximum extent practicable.
The second part of the question – how to mitigate, is something to be discussed between the Corps, the applicant, and your consultant. Mitigation could come in the form of wetland creation, wetland enhancement, wetland restoration, or conservation easements on the property or any combination of the above. Although not yet available in the County, the Corps can allow an applicant to purchase mitigation credits at a Corps approved mitigation bank. A mitigation bank is a wetland creation or restoration project developed by a separate entity, which is allowed to sell credits to applicants in need of wetland mitigation. The County is hoping to facilitate the development of a wetland mitigation bank in Summit County in the near future. A pre-project or pre-application meeting with the Corps is the best, proactive approach a landowner can take when developing a property that contains wetlands.
11) If there are wetlands on my property and somehow they get drained or
filled, what potential penalties are associated with such an activity?
Under the Federal Clean Water Act (Section 404), you, the property owner, are
responsible for unauthorized discharges of dredged or fill material into wetlands on your
property. Draining of wetlands without a discharge of material into waters or wetlands
does not actually require a Federal permit, however, it is regulated by the County. The
Corps or the EPA would hold the landowner responsible for the fill-related violation,
including any administrative fines, fines imposed by the courts (if the action was
litigated), and the costs of restoring the site (which can be high).
Administrative penalties are calculated based on the seriousness of the damage and the willfulness of the violation. The administrative fine can range up to $25,000 for a relatively minor case to $125,000 for a more serious case. If the enforcement action is brought to Federal court, the fines imposed can reach $25,000 per day for each day the material remains in the wetland. Provisions for criminal prosecution are also available to the government.
If you can prove that the work was done without your permission or knowledge, you reported the work to the Federal agencies, and the agencies can find and prosecute the responsible party, you may be able to avoid any fines, provided you cooperate and allow for the restoration of the affected wetlands by the responsible party.
Global Perspective
Wetland science, functions, and values are discussed on television, the radio, magazines, and other media sources. Unfortunately, this may be due to the rapid loss and degradation that wetlands have experienced in the last several decades. Since the late 1700’s, over half (53%) of the wetlands in the United States, excluding Alaska, have been lost. About 35 percent were gone by the 1950’s and from the mid-1970’s to the mid-1980’s, wetlands were lost at an annual rate of 290,000 acres per year, an additional loss equaling the combined area of Massachusetts, Connecticut, and Rhode Island. Twenty-two states have lost at least 50% of their original wetlands. Seven of those– California, Illinois, Indiana, Iowa, Missouri, Kentucky, and Ohio – have lost more than 80% of their original wetlands.
Within our country, progress has also been made in the scientific and regulatory fields to better understand our wetland resources, and to disseminate information about their importance. Laws that protect and preserve wetlands, including Section 404 of the Clean Water Act and the 1985 Swampbuster provisions of the Flood Securities Act, have been passed and strengthened; and public and private programs have been developed to restore wetlands.
However, USACE regulations change frequently and may not always provide adequate management of wetlands and their functions. This oscillation of federal wetland regulations may leave certain wetland types vulnerable to permanent development impacts. This is significant as high quality wetlands are biologically significant and of superior quality or value critical to protecting water quality, quantity and other important wetland functions.
Innovative policies such as the "no net loss of wetlands" program have also been formulated to allow for the creation and restoration of wetlands in cases where wetlands are inevitably destroyed by development. The result of this activity has given Americans, as well as the international community, a renewed understanding of the importance and value of wetlands, and it has brought to light many of the issues that remain to be addressed regarding wetland protection and conservation.