SELC Comments on Proposed Permanent Wetland Rules

December 1, 2021
Via Email
Sue Homewood
North Carolina Department of Environmental Quality
Division of Water Resources
450 W. Hanes Mill Road
Winston-Salem, NC 27107
[e-mail]
Re: Letter of Support for Permanent Wetland Rules: 15A N.C. Admin. Code 02H
.1301 (Revision) and 15A N.C. Admin. Code 02H .1400 (.1401 through .1405)
Dear Ms. Homewood:
Please accept these comments in support of the Environmental Management
Commission’s proposed permanent rules: 15A N.C. Admin. Code 02H .1301 (Revision) and 15A
N.C. Admin. Code 02H .1400 (.1401 through .1405).
The Southern Environmental Law Center submits these comments on its own behalf and
on behalf of American Rivers, Cape Fear River Watch, Carolina Wetlands Association, Catawba
Riverkeeper, Coastal Carolina Riverwatch, Dan River Basin Association, Dan Riverkeeper,
Good Stewards of Rockingham, Haw River Assembly, MountainTrue, Neuse Riverkeeper, North
Carolina Coastal Federation, North Carolina Conservation Network, North Carolina Sierra Club,
North Carolina Wildlife Federation, Pamlico-Tar Riverkeeper, Sound Rivers, Waterkeepers
Carolina, Winyah Rivers Alliance, and Yadkin Riverkeeper.
Our organizations have a longstanding interest in maintaining and preserving North
Carolina’s wetlands and in advocating for a strong permitting program to authorize and impose
requirements on impacts to North Carolina’s wetlands. As a result of changes in federal law,
many wetlands and headwater streams in North Carolina were for a time left unprotected by the
federal Clean Water Act. These wetlands remain protected under state law, but because federal
permits were no longer required for activities in these wetlands, there was no permitting
mechanism available for the North Carolina Department of Environmental Quality (the
“Department”) to authorize (and impose requirements on) impacts to the wetlands, leading to
unnecessary conflict and increasing the potential for illegal wetland destruction.
2
We therefore support the permanent rules to fill this permitting gap and maintain
consistency for the state program regardless of changes in federal jurisdiction, yet we urge the
Department to incorporate the changes outlined in this comment letter in finalizing permanent
rules that will adequately protect North Carolina’s wetlands, threatened and endangered species,
and overall water quality from the impacts of lost wetland functions. Specifically, we urge the
Department to incorporate stronger protections for impacts to exceptional or ecologically
significant wetlands and for wetlands that provide habitat for state or federal endangered and
threatened species. We also urge the Department to increase the default mitigation ratio to at
least 2 to 1 and further require that the loss of wetland functions (as opposed to simple acreage)
is compensated for through mitigation in the same watershed.
I. The Permanent Rules Will Create a Permitting Program for Impacts to Wetlands
that Have Been Regulated by the Environmental Management Commission for at
Least 20 Years.
The permanent rules are within the Environmental Management Commission’s authority—the
Commission has regulated impacts to the wetlands covered by the rule for decades. That authority is
well grounded in the North Carolina Constitution, state statute, and case law.
The North Carolina Constitution mandates that the State protect its wetlands. Article XIV,
Section 5 of the North Carolina Constitution establishes the policy of the State to conserve and protect
its land and waters and explicitly states that it is the policy of the State “in every other appropriate way
to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches,
historical sites, openlands, and places of beauty.”1
In keeping with this broad mandate, the North Carolina General Assembly declared it to be the
public policy of the State to provide for the conservation of the State’s water resources and has
acknowledged the State’s responsibility for the preservation and development of those resources in the
best interests of all its citizens.2 Waters of the State include:
any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek,
reservoir, waterway, or other body or accumulation of water, whether
surface or underground, public or private, or natural or artificial, that is
contained in, flows through, or borders upon any portion of this State,
including any portion of the Atlantic Ocean over which the State has
jurisdiction.3

The General Assembly directs that waters of the State be regulated in a manner:

1 N.C. Const. art. XIV, § 5 (emphasis added).
2 See N.C. Gen. Stat. § 143-211.
3 N.C. Gen. Stat. § 143-212(6) (emphasis added).
3
to protect human health, to prevent injury to plant and animal life, to
prevent damage to public and private property, to insure the continued
enjoyment of the natural attractions of the State, to encourage the
expansion of employment opportunities, to provide a permanent foundation
for healthy industrial development and to secure for the people of North
Carolina, now and in the future, the beneficial uses of these great natural
resources.4

The Environmental Management Commission’s authority to adopt wetlands regulations
and protect wetlands as waters of the State, including the wetlands covered by the proposed
permanent rules, has been litigated and affirmed. In 2002, the North Carolina Court of Appeals
ruled that wetlands are waters of the State and fully upheld the Commission’s statutory authority
to regulate activities impairing or destroying wetlands.5
For decades, North Carolina’s Department of Environmental Quality has worked
cooperatively with the United States Army Corps of Engineers to protect the State’s wetlands
and authorize impacts to them when impacts are unavoidable. The State relies on the Army
Corps to identify wetlands considered “waters of the United States,” to which impacts cannot
occur without obtaining a Clean Water Act Section 404 permit from the Army Corps and a Clean
Water Act Section 401 certification from the Department. As part of these processes, applicants
must employ methods of avoiding and mitigating impacts to federally protected wetlands.
Applicants must also provide compensatory mitigation, where necessary, to replace impacted
wetlands by restoring or enhancing wetlands or ensuring the preservation of other existing
wetlands that serve similar ecological functions. Where state wetlands fall outside the federal
definition of “waters of the United States,” state authorization (permitting) is required because
those waters remain “waters of the State.”
In 2014, the North Carolina General Assembly established a set of impact thresholds for
wetlands that have been the subject of dispute under federal law.6 In 2015, the North Carolina
General Assembly limited the application of the Environmental Management Commission’s
existing isolated wetlands regulations to “Basin Wetlands” and “Bogs.”7 Neither the 2014 nor
the 2015 session laws applied to the wetlands at issue under the permanent rules, which were
clearly “waters of the United States” at that time and, therefore, regulated by North Carolina
through the Section 401 certification process.
These session laws directed the Environmental Management Commission to revise North
Carolina’s existing isolated wetlands regulations—they did not repeal the Commission’s
authority to authorize or permit activities in wetlands, nor did they alter state law or regulations
4 N.C. Gen. Stat. § 143-211(c).
5 In re Declaratory Ruling by Env’t Mgmt. Comm’n, 155 N.C. App. 408, 409, 413 (2002).
6 N.C. Sess. Law 2014-120 § 54 (setting impact thresholds for review and mitigation under the state program).
7 N.C. Sess. Law 2015-286 § 4.18(a).
4
defining wetlands as waters of the State and requiring protection of the State’s wetlands. They
did not affect the Commission’s water quality certification rules 8 governing impacts to the
wetlands subject to the proposed permanent rules.
The Environmental Management Commission has the authority—indeed the obligation—
to regulate impacts to these wetlands. It has done so for decades under the State’s water quality
certification rules in 15A N.C. Administrative Code 02H .0506. It must do so now.
II. Federal Clean Water Act Rollbacks Created a Permitting Gap for the Majority
of North Carolina’s Wetlands.
Section 401 of the Clean Water Act has provided North Carolina with its primary tool
(certification authority) to impose conditions to limit pollution and protect waters and wetlands
within its boundaries from destructive projects that require a federal license or permit.9 The
Clean Water Act requires a federal license or permit only where there is a discharge of pollutants
into “waters of the United States.”10
Between the late 1970s and early 2000s, federal courts and agencies defined the term
“waters of the United States” broadly to include many kinds of water bodies, including wetlands.
Beginning in 1985, the United States Supreme Court recognized that the term “waters of the
United States” extends to waters and wetlands that “have significant effects on water quality and
the aquatic ecosystem.”11 Despite cases in the late 1990s that created some uncertainty about the
scope of the term,12 federal agencies have at least protected streams and wetlands with a
“significant nexus” to traditional navigable waters as “waters of the United States.”13 A water
has a “significant nexus,” if it, or its functions, “significantly affect the chemical, physical, and
biological integrity” of traditional navigable waters or other jurisdictional waters.14 Under this
longstanding definition of “waters of the United States,” North Carolina was able to use its
8 15A N.C. Admin. Code 02H .0506.
9 33 U.S.C. § 1341(d).
10 33 U.S.C. § 1362(7).
11 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135 n.9 (1985).
12 See, e.g., Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 167 (2001)
(“SWANCC”) (holding the federal government could not regulate an isolated, abandoned gravel pit); United States v.
Wilson, 133 F.3d 251, 258 (4th Cir. 1997) (holding the federal government cannot regulate wetlands that “are [not]
connected closely to [either] interstate [or] navigable waters” and “which do not otherwise substantially affect
interstate commerce”).
13 See Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,217, 41,250–51 (Nov.
13, 1986); 33 C.F.R. § 328.3(a) (1987); 40 C.F.R. § 232.2 (1988); Clean Water Rule: Definition of “Waters of the
U.S.,” 80 Fed. Reg. 37,054 (June 29, 2015); Definition of “Waters of the U.S.”––Addition of an Applicability Date
to 2015 Clean Water Rule, 83 Fed. Reg. 5,200 (Feb. 6, 2018); Final Rule, Definition of “Waters of the U.S.”––
Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019); U.S. Env’t Prot. Agency & U.S. Army
Corps of Eng’rs, Clean Water Act Jurisdiction following the U.S. Supreme Court’s Decision in Rapanos v. United
States & Carabell v. United States, 1, 8, 12 (2008).
14 Rapanos v. United States, 547 U.S. 715, 759, 779–80, 787 (Kennedy, J., concurring) (quoting 33 U.S.C.
§ 1251(a)).
5
Section 401 certification authority to protect wetlands and other “waters of the state” that the
Army Corps determined to have the requisite “significant nexus.”.
Then, in 2020, the prior administration defined “waters of the United States” more
narrowly than had any other administration before. In the so-called “Navigable Waters
Protection Rule” (“NWPR”), the Trump administration abandoned the longstanding “significant
nexus” test, unlawfully excluding countless essential wetlands and streams from federal Clean
Water Act protections—including at least 900,000 acres of wetlands in North Carolina’s Cape
Fear and Neuse River basins alone.15
The NWPR was immediately challenged in federal courts around the country. In addition
to several states, the North Carolina Department of Environmental Quality asked a federal
district court to enjoin the NWPR (i.e., stop it from being applied) nationwide. But the court
unexpectedly denied that request on June 19, 2020, allowing implementation of the rule and its
effect of creating the North Carolina permitting gap to go forward.16
III. North Carolina Needs the Permanent Wetlands Rules to Authorize and Impose
Requirements on Unavoidable Impacts to the State’s Critical Wetlands.
Under the NWPR, federal permits were no longer required to destroy many North
Carolina wetlands, including countless acres of headwater forests, Carolina Bays, pocosins,
bottomland hardwoods, floodplain pools, pine flats, pine savannahs, hardwood flats, and non-
riverine swamp forests. With no federal permits required, the State was unable to use its water
quality certification authority to meet its obligation to protect these wetlands as “waters of the
State” or impose conditions on unavoidable impacts. After decades of relying on the water
quality certification rules to regulate impacts to the wetlands with a “significant nexus,” North
Carolina was left without a permitting regime for these wetlands because North Carolina’s
existing wetlands regulations did not separately authorize activities in these wetlands absent a
water quality certification.17
To reinstate a regulatory mechanism to authorize and impose requirements on impacts to
wetlands and waters that were no longer “waters of the United States” under the NWPR, the
Environmental Management Commission adopted temporary wetland rules.18 These rules
15 Decl. of Jovian Sackett at 8-9, S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-01687-BHH (D.S.C.
July 10, 2020), ECF No. 58-50 (Attachment A).
16 California v. Wheeler, 467 F. Supp. 3d 864, 877 (N.D. Cal. 2020) (denying the request for an injunction made by
the North Carolina Department of Environmental Quality, the City of New York, the District of Columbia, and
following states: California, Connecticut, New York, Illinois, Maine, Maryland, Massachusetts, Michigan, New
Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin).
17 15A N.C. Admin. Code 02H .1301(b) (applying State’s isolated wetlands permitting regulations to “Basin
Wetland[s]” and “Bog[s]”).
18 N.C. Dep’t of Env’t Quality, Regulatory Impact Analysis for Proposed Rule 15A N.C. Admin. Code 02H .1301,
1401-.1405 at 7 [hereinafter “Regulatory Impact Analysis”], https://perma.cc/XU69-Z572; see 15A NCAC 02H
.1401-.1405.
6
temporarily established a state permitting program for federally non-jurisdictional wetlands and
waters that are not eligible for permitting coverage under other existing wetland permitting rules
in 15A NCAC 02H Section .0500 (401 Certification) or Section .1300 (Isolated Wetlands). For
the sake of expediency, the temporary rules were adopted to be substantively similar to 15A
NCAC 02H Section .1300 (Isolated Wetlands).19 These temporary rules were adopted by the
Environmental Management Commission on May 13, 2021 with an effective date of May 28,
2021. The temporary rules will expire February 22, 2022, again creating a permitting gap unless
permanent rules are adopted to replace them.
In August 2021, a federal court vacated the NWPR nationwide.20 A second federal court
vacated the rule in September 2021.21 Despite these court decisions, North Carolina lacks any
permanent permitting mechanism for the wetlands excluded under the NWPR while the rule was
in effect. Moreover, industry has filed a notice of appeal.22 Until litigation is final, there is a risk
that the NWPR could be reinstated. And, although the Biden administration has begun the
process of adopting a new rule to define “waters of the United States,” that rulemaking process is
not likely to be completed prior to the expiration of the temporary rules. The permanent rules are
therefore necessary to eliminate uncertainty regarding wetland protections and provide a future
permitting pathway for affected wetlands. Without the permanent wetlands rules in place, the
Department of Environmental Quality cannot issue permits for or impose requirements on
unavoidable impacts to these North Carolina wetlands.
IV. The Permanent Rules Should More Fully Protect North Carolina’s Wetlands and
Compensate for Their Unavoidable Losses.
We support the adoption of the permanent rules, including the setting of the “deemed
permitted” threshold at 1/10 acre, given the permitting gap created by the changes in federal law.
In order to adequately protect North Carolina’s essential wetlands, however, additional
protections are needed in the final permanent rules, including (1) a carveout provision from the
deemed permitted process for exceptional or ecologically significant wetlands and for wetlands
that provide habitat for state and federally listed species and (2) increased mitigation to more
fully compensate for lost wetland functions.

19 Regulatory Impact Analysis at 7.
20 Pascua Yaqui Tribe v. U.S. Env’t Prot. Agency, No. CV-20-00266-TUC-RM, 2021 WL 3855977 (D. Ariz. Aug.
30, 2021).
21 Navajo Nation v. Regan, No. 20-CV-602-MV/GJF, 2021 WL 4430466 (D.N.M. Sept. 27, 2021).
22 Notice of Appeal from a J. or Order of a U.S. Dist. Ct., Pascua Yaqui Tribe, 2021 WL 3855977 (Oct. 25, 2021),
ECF No. 106.
7

A. North Carolina’s Water Quality and Unique Landscape Depend on the
Health of the State’s Wetlands.
North Carolina’s wetlands are an essential part of the State’s natural heritage. They
include ecological features like Carolina Bays and pocosins, and they provide critical ecosystem
services that the people of the State rely on to improve and maintain water quality.
Our wetlands filter upstream pollution and prevent the pollution from entering our
sensitive estuaries and marine environments. They provide an efficient, low-cost mechanism for
treating sewage and other organic wastes 23 and retain runoff from agricultural, industrial, and
residential sources.24 They play a critical role in removing sediment, excess nutrients, and other
pollutants that have the potential to decimate North Carolina’s valuable commercial and
recreational fisheries 25 (not to mention the essential habitat that wetlands provide for the 95% of
commercially harvested shellfish and finfish that are wetland dependent).26 Millions of North
Carolinians rely on surface waters kept clean by wetlands as their source of drinking water 27;
wetlands also recharge groundwater supplies 28 and prevent saltwater intrusion 29—important for
the millions more North Carolinians who get their water from wells. Even small North Carolina
wetlands provide these key functions, in some cases even more efficiently than larger wetlands.30
Wetlands also guard against flooding, which is increasingly important due to the size and
frequency of storms we have experienced in North Carolina over the last several years.31 A
single acre of wetlands can store up to 1 million gallons of water, releasing it slowly over time,
reducing damage downstream.32 But when that acre of wetland is removed, those 1 million
gallons flow unimpeded downstream, increasing the risk of flooding.33 It is therefore more

23 Grayson Giugno, White Paper: The Importance of Small Wetlands in North Carolina 7 (Carolina Wetlands
Association, Dec. 2021) [hereinafter “White Paper”] (Attachment B).
24 Regulatory Impact Analysis at 32.
25 White Paper at 6; Regulatory Impact Analysis at 32; N.C. Dep’t of Env’t Quality, North Carolina Coastal Habitat
Protection Plan, 2021 Amendment 36 (2021) [hereinafter “CHPP Amendment”], https://perma.cc/3XGJ-YMPP
(noting that “[i]ncreased precipitation . . . coupled with wetlands loss will increase the amount of nutrient rich and
polluted stormwater runoff entering the estuaries,” which “can lead to hypoxic (low oxygen) conditions, resulting in
mass mortality of shellfish and finfish”); id. at 87-88, 110.
26 Regulatory Impact Analysis at 32.
27 White Paper at 7.
28 CHPP Amendment at 87.
29 White Paper at 8.
30 See generally White Paper.
31 Regulatory Impact Analysis at 31-32; White Paper at 7-8.
32 White Paper at 8.
33 U.S. Env’t Prot. Agency, Wetlands: Protecting Life and Property from Flooding, EPA843-F-06-001 at 1 (May
2006), https://perma.cc/5LL5-ANMD; see also N.C. Dept. of Env’t Qual., Div. of Coastal Mgmt., NC-CREWS: NC
Coastal Region Evaluation of Wetland Significance 45-50 (May 1999), https://perma.cc/5XF4-UGX2 (describing
multiple factors that determine how much a given wetland can contribute to flood reduction).
8
important than ever that wetlands stay protected given the increased flooding risks across the
State.
In the last few years, North Carolina has been hit with multiple devastating 500-year
storms—including Hurricane Matthew, Hurricane Florence, and Tropical Storm Michael. It has
been estimated that the damage from Hurricane Florence reached nearly $17 billion and from
Hurricane Matthew $4.8 billion, with most of the damage caused by floodwaters.34 Without the
storage capacity of North Carolina’s remaining wetlands, the damage would have been even
more catastrophic.35 These types of “back-to-back hurricanes” are “projected to increase in
frequency, power, and duration,” making the preservation of North Carolina’s wetlands more
important than ever.36
Moreover, the rapid growth occurring in North Carolina makes development in and
around wetlands all the more likely. North Carolina is the ninth most populous state in the
United States, but only 29th largest by land area.37 The United States Census Bureau found that
from 2010 to 2020, North Carolina gained just over 900,000 new residents, an increase of
9.5%.38 North Carolina’s growth going forward is likely to accelerate. And a significant portion
of that growth is occurring in areas with a large percentage of wetlands. For example, one study
projected growth of up to 18% between 2010 and 2020 in the coastal plain counties of Currituck,
Dare, Pitt, Carteret, Duplin, Cumberland, Onslow, Pender, New Hanover, and Brunswick.39 We
need stringent state wetlands regulations to ensure that this growth occurs with the necessary
measures to protect these valuable resources.
Finally, protecting the State’s wetlands by ensuring that development proceeds in a
responsible manner aligns with the priorities expressed by the North Carolina General Assembly.
The Legislature recently approved a budget that allocates tens of millions of dollars towards
measures addressing flood control, storm damage mitigation, and stormwater management,
among other disaster relief and resiliency measures.40 Declining to impose appropriate
protections in the permanent wetlands rules would work against legislative efforts in this area.
Indeed, the planned investments on flood control measures would be undercut by rules allowing
excessive and unmitigated destruction of the State’s best natural defense against flooding. To
protect the State’s investments, the Department should maintain the 1/10 acre deemed permitted

34 N.C. Dep’t of Env’t Quality & Off. of the Att’y Gen., Comments on Proposed Revised Waters of the United
States (“WOTUS”) Rule at 3-4 (April 15, 2019) [hereinafter “N.C. Waters of the U.S. Comments”],
https://perma.cc/984M-UQKF.
35 Id. at 4.
36 Id.
37 U.S. Census Bureau, State Profile: North Carolina (Aug. 25, 2021), https://perma.cc/JCB4-CZGC.
38 Id.
39 N.C. Waters of the U.S. Comments at 3.
40 N.C. Sess. L. 2021-180.
9
threshold and require more protective mitigation, as outlined below, in the final permanent
wetlands rules.
B. The Environmental Management Commission Appropriately Set the
Proposed Deemed Permitted Threshold at 1/10 Acre.
In the temporary wetland rules, the Commission provided that activities affecting “less
than or equal to one acre of federally non-jurisdictional wetlands for the entire project in the coastal
region, less than or equal to one-half acre . . . in the piedmont region, and less than or equal to one-
third acre . . . in the mountain region are deemed to be permitted.”41 These thresholds, which are
consistent with the deemed permitted thresholds for Isolated Wetlands under 15A NCAC 02H
Section .1300 (Isolated Wetlands), were adopted for the sake of expediency in the temporary
rule.42 These thresholds were, however, too high to adequately address the significant cumulative
impacts to the environment by smaller-scale destruction of wetlands that significantly affect the
health of surrounding and downstream waters by carrying pollutants or flood waters.
Because wetlands are lost through the proverbial “death by a thousand cuts”—many
small projects rather than a few large ones—a lower deemed permitted threshold is critical to
protecting wetlands in the state. And because small wetlands—those less than an acre in size 43—
perform certain functions more efficiently than larger wetlands and thus play a key role in
maintaining the health of a water system, it is crucial for small wetlands to be protected.44 The
agency therefore appropriately lowered the threshold below which projects can proceed with no
review to 1/10 acre. In North Carolina, most projects resulting in impacts to wetlands affect 1/10
acre or less.45 Thus, even set at 1/10 acre, the deemed permitted program exempts most projects,
allowing them to proceed in a streamlined fashion and conserving agency resources to focus on
more significant wetland impacts.
The proposed 1/10-acre threshold is also consistent with North Carolina’s Section 401
water quality certification regulations that have long applied to the affected wetlands and with
the Army Corps’ Section 404 regulations. Under North Carolina’s certification rules, total
impacts to less than 1/10 acre of wetlands do not require compensatory mitigation.46 Under its
Section 404 authority, the Army Corps has issued a number of general permits authorizing
smaller projects to proceed with reduced application requirements, and those permits generally
authorize projects impacting less than 1/10 acre to proceed without compensatory mitigation.47
41 Temporary 15A N.C. Admin. Code 02H .1405(c).
42 Regulatory Impact Analysis at 7.
43 White Paper at 3.
44 White Paper at 6.
45 Regulatory Impact Analysis at 16 (noting that 60% of projects impacted 1/10 acre or less but noting that this
percentage like underrepresents the share of projects impacting less than 1/10 acre).
46 15A N.C. Admin. Code 02H .0506(c)(2).
47 See, e.g., Army Corps of Eng’rs, Nationwide Permit 12, Oil or Natural Gas Pipeline Activities at 11 (2021)
[hereinafter “Nationwide Permit 12”], https://perma.cc/K7EF-DSWS.
10
Setting the deemed permitted threshold at 1/10 acre therefore appropriately reduces the
cumulative effects of unpermitted wetland impacts and promotes consistency across state and
federal requirements.
C. The “Deemed Permitted” Program Should Not Extend to Exceptional or
Ecologically Significant Wetlands, or Wetlands that Provide Habitat for State
and Federally Listed Species.
The final permanent rule should not extend the “deemed permitted” exception to
particularly valuable wetlands—that is, all impacts to those wetlands should require permitting
and mitigation. This, too, would be consistent with state and federal requirements.
Under North Carolina’s Section 401 regulations, for example, although most impacts to
less than 1/10 acre do not require compensatory mitigation, all impacts to wetlands of
“exceptional state or national ecological significance” require mitigation.48 Further, federal
Section 404 general permits also include carveouts for some impacts to less than 1/10 acre of
wetlands: under that program, Army Corps district engineers retain discretion to require
mitigation for projects impacting less than 1/10 acre where necessary to ensure that the project
results in no more than minimal environmental impacts.49 Nationwide general permits under
Section 404 also direct that no activity that will jeopardize the continued existence of endangered
or threatened species is authorized under any general permit.50
Some states require a permit application to be submitted for all projects impacting
wetlands, no matter how small. In Virginia, for example, projects impacting less than 1/10 acre
are authorized under “Reporting Only” permits, and the Virginia Department of Environmental
Quality does not require compensatory mitigation for these projects unless mitigation is
necessary in order to protect water quality or the aquatic environment.51 The Department should
impose a similar program in the final permanent rules.
Although many smaller-impact projects should be allowed to proceed with minimal
delay, some wetlands are too valuable to allow even a small area to be destroyed without
compensating for the loss and are therefore not appropriate to include in the “deemed permitted”
program. These additional protections for small impacts to particularly valuable wetlands are
especially necessary given that the majority of projects in North Carolina affect only 1/10 acre of
wetlands or less. North Carolina already recognizes the importance of additional protections for
48 15A N.C. Admin. Code 02H .0506(c)(2)-(3) (“All impacts to class UWL wetlands shall require compensatory
mitigation.”); N.C. Dep’t of Env’t Quality, Classifications, https://perma.cc/5C5Q-9WJ5 (last visited Nov. 15, 2021)
(defining class UWL wetlands as wetlands of “exceptional state or national ecological significance”).
49 See, e.g., Nationwide Permit 12 at 11.
50 See, e.g., id. at 6.
51 See, e.g., Va. Dep’t of Env’t Quality, Virginia Water Protection (VWP) Program Overview at 13-14 (Sept. 2019),
https://perma.cc/WCE3-YBZ4; 9 Va. Admin. Code § 25-660-30(E) (Attachment C); 9 Va. Admin. Code
§ 25-210-130(B) (Attachment D).
11
these wetlands in the Section 401 certification regulations and should continue to do so in the
permanent rules here.
D. Mitigation Provisions Should More Fully Compensate for Losses of Wetland
Functions.
Compensatory mitigation to offset unavoidable impacts to wetlands is critical to
protecting water quality, habitat, families, and communities of North Carolina. In support of this
goal, the final permanent rule should incorporate increased mitigation ratios, should explicitly
account for the loss of wetland functions—not just wetland area—in determining the amount of
mitigation required, and should incorporate more robust mitigation requirements consistent with
state Section 401 regulations and federal Section 404 requirements.
1. The Final Permanent Rule Should Retain Mitigation Multipliers
But Also Increase the Default Ratio to at Least 2 to 1 Consistent
with Federal Practice.
Under the proposed permanent rule, mitigation is generally required to occur at a
minimum of a 1 to 1 ratio, although that ratio is subject to multipliers based on the type of
mitigation conducted.52 These multipliers are necessary to account for the fact that not all
mitigation is equally beneficial; EPA and the Army Corps, for instance, have repeatedly
recognized that mitigation through restoration is preferable to mitigation through creation of new
wetlands.53 The state Section 401 regulations, which contain the same multiplier requirements as
the proposed permanent rules, also adopt this approach.54 The mitigation ratio multipliers should
therefore be maintained in the final rules.
In addition to imposing mitigation multipliers, the baseline mitigation requirement should
be increased to at least 2 to 1 consistent with federal practice. Under federal Section 404
mitigation requirements, it has long been the practice of the Army Corps in North Carolina to
require mitigation to occur at a 2 to 1 ratio.55 This requirement is consistent with the federal
Section 404 regulations’ requirement that mitigation be greater than 1 to 1 where necessary to

52 Proposed 15A N.C. Admin. Code 02H .1405(c)(4).
53 See Army Corps of Eng’rs & Env’t Prot. Agency, Memorandum of Agreement Between the EPA and the Dept. of
the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines at 4
(1990) (recognizing that the likelihood of success is greater for restoration than for other types of mitigation
involving creation of new wetlands, https://perma.cc/P2BW-RLEF; Army Corps of Eng’rs, Memorandum to the
Field, at 1-2 (Oct. 29, 2003) (recognizing the same) (Attachment E); 40 C.F.R. § 230.93(a)(2) (2021) (recognizing
that restoration is generally preferable to establishment, enhancement, or preservation).
54 15A N.C. Admin. Code 02H .0506(c)(5).
55 Army Corps of Eng’rs, Wilmington District Implementation of the North Carolina Stream Assessment Method and
North Carolina Wetland Assessment Method (Apr. 21, 2015), https://perma.cc/F3V6-XZ2C; see also Regulatory
Impact Analysis at 20 (“Under the 404 program, the U.S. Army Corps of Engineers typically requires mitigation at a
ratio of 2:1.”).
12
“replace lost aquatic resource functions.”56 According to those regulations, a number of factors
might render a 1 to 1 ratio inadequate, including
the method of compensatory mitigation . . . , the likelihood of success, differences
between the functions lost at the impact site and the functions expected to be
produced by the compensatory mitigation project, temporal losses of aquatic
resource functions, the difficulty of restoring or establishing the desired aquatic
resource type and functions, and/or the distance between the affected aquatic
resource and the compensation site.57
In its alternatives analysis in support of the proposed rule, the Department analyzed a
1/10-acre permitting and mitigation threshold with a 2 to 1 mitigation ratio.58 After recognizing
that this combination “most closely aligns with the current regulatory process under the
combined 404/401 programs,” the Department acknowledged that “[e]ven at [this] higher
mitigation ratio, it is unlikely that mitigation wetlands will fully replace the function of natural
impacted wetlands.”59 The Department further opined that, with a 2 to 1 ratio, “it is likely that
the rate of net loss of wetland function would be slowed.”60 Concluding that “the costs to the
environment from [applying a 2 to 1 mitigation ratio] will be lower [than] under the proposed [1
to 1 ratio], but they will likely still be significant,”61 the Department inexplicably proposed
adopting a 1 to 1 ratio in the proposed permanent rules. Consistent with federal practice and as
necessary to reduce the net loss of wetland function for the State, the Commission should adopt a
2 to 1 ratio as the default in the final permanent rule.
2. Mitigation Should Compensate for Loss of Wetland Functions, Not
Just Wetland Acreage.
In addition to adopting a 2 to 1 mitigation ratio, the final rule should more explicitly
require replacement of wetlands functions to be considered in determining the amount and type
of compensatory mitigation required. As noted by EPA and the Army Corps in promulgating
rules under Section 404, “[s]imply requiring one-to-one acreage replacement may not adequately
compensate for the aquatic resource functions and services lost.”62 The agencies therefore
determined that the regulations should “focus[] on protecting ‘functions’ (the physical, chemical
and biological processes that occur in aquatic resources) and ‘services’ (the benefits to humans
that result from these functions)” rather than pure acreage.63 As a result, the Section 404
56 40 C.F.R. § 230.93 (2021).
57 Id.
58 Regulatory Impact Analysis at 36.
59 Id.
60 Id.
61 Id.
62 Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19594, 19604 (Apr. 10, 2008) (codified
at 33 C.F.R. pts. 325, 332; 40 C.F.R. pt. 230) [hereinafter “2008 Mitigation Rule”].
63 Id.
13
regulations provide throughout that the goal of mitigation should be to replace lost wetland
functions.64 The final permanent rule should do the same.
Under Section 404, mitigation plans must “contain performance standards that will be
used to assess whether the project is achieving its objectives,” allowing the project to be assessed
to determine whether it is “providing the expected functions.”65 These performance standards
recognize the importance of objective, verifiable means of assessing whether mitigation is
adequately offsetting impacts while also maintaining the flexibility to accommodate variations
between projects.66 Thus, the ecological performance standards require use of the best available
science and “may be based on variables or measures of functional capacity described in
functional assessment methodologies, measurements of hydrology or other aquatic resource
characteristics, and/or comparisons to reference aquatic resources of similar type and landscape
position.”67
Although the proposed rule incorporates the requirement that “the emphasis of
compensatory mitigation [should be] on replacing functions within the same river basin,”68 the
final rule should include a more specific requirement that mitigation must be set at a level
necessary to compensate for lost wetland functions.
3. Mitigation Should Be Required in the Same Watershed and Be of
the Same Wetland Type as the Impacted Wetland.
The final permanent rules should incorporate additional mitigation requirements
consistent with state Section 401 certification regulations and federal Section 404 regulations.
The proposed rule requires compensatory mitigation to occur in the same river basin as
the wetland impacted by the project.69 Although this requirement is consistent with North
Carolina’s Section 401 certification regulations 70 and should be maintained, the final rule should
also require that the mitigation occur within the same watershed and be of the same wetland
type.
First, the final rule should include a more explicit requirement that mitigation occur not
just in the same river basin, but also in the same watershed as the project in question. A river
basin (6-digit or 8-digit Hydrologic Unit Code (HUC)) consists of all the waters (tributaries,
lakes, reservoirs, ground water, etc.) that flow towards the river. Watersheds (10-Digit or 12-
64 See, e.g., 40 C.F.R. § 230.93(b)(1) (2021) (“In general, the required compensatory mitigation . . . should be
located where it is most likely to successfully replace lost functions and services . . . .”).
65 Id. § 230.95.
66 2008 Mitigation Rule at 19597.
67 40 C.F.R. § 230.95(b) (2021).
68 N.C. Gen. Stat. § 143-214.11(c) (emphasis added); see Proposed 15A N.C. Admin. Code 02H .1405(c)(5)
(requiring compensatory mitigation to comply with the requirements of N.C. Gen. Stat. § 143-214.11).
69 Proposed 15A N.C. Admin. Code 02H .1405(c)(7).
70 15A N.C. Admin. Code 02H .0506(c)(8).
14
Digit HUC) are smaller areas located within a river basin that include creeks, streams, lakes,
reservoirs, groundwater aquifers, springs and sections of a river.71
North Carolina’s Section 401 regulations require that mitigation of impacts to certain
types of wetlands take place within the same watershed as the impacted wetland.72 The
watershed requirement is also consistent with federal Section 404 requirements, which require
that compensatory mitigation occur in the same watershed as the affected project site,73 and more
broadly require mitigation to occur “where it is most likely to successfully replace lost functions
and services, taking into account such watershed scale features as aquatic habitat diversity,
habitat connectivity, relationships to hydrologic sources (including the availability of water
rights), trends in land use, ecological benefits, and compatibility with adjacent land uses.”74 “The
size of watershed addressed using a watershed approach should not be larger than is appropriate
to ensure that the aquatic resources provided through compensation activities will effectively
compensate for adverse environmental impacts . . . .”75 Although the proposed rules incorporate
this watershed approach by requiring that mitigation be conducted “in accordance with 33 CFR
Part 332,”76 the final rules should include a specific watershed requirement in the text of the rule
rather than simply incorporating by reference the federal rules. Specifically, the final rule should
require that compensatory mitigation occur in the same watershed as the impacted area, with the
size of the watershed as small as is feasible and in no instance larger than the basin identified by
the 8-digit HUC.
Additionally, in the final permanent rules, the Commission should require mitigation to
be of the same wetland type as the impacted wetland, consistent with North Carolina’s Section
401 regulations. For instance, under the Section 401 requirements, when impacts are to saltwater
wetlands, mitigation must also involve saltwater wetlands.77 Crucially, when impacts are to
unique wetlands of exceptional ecological significance, or to wetlands that serve as habitat for
endangered or threatened species, mitigation under the Section 401 regulations must also be of
the same wetland type.78 Federal Section 404 regulations also require mitigation to generally
involve the same wetland type as the impacted wetland.79 Incorporating this requirement into the
final rules ensures that mitigation will compensate for the particular wetlands lost as completely
as possible.

71 See generally U.S. Geological Survey, Hydrologic Unit Maps, https://perma.cc/922R-ECPB (last visited Nov. 30,
2021).
72 See 15A N.C. Admin. Code 02H .0506(c)(10)-(11).
73 40 C.F.R. § 230.93(c) (2021); 33 C.F.R. § 332.3 (2021).
74 40 C.F.R. § 230.93(b)(1) (2021).
75 33 C.F.R. § 332.3(c)(4) (2021).
76 Proposed 15A N.C. Admin. Code 02H .1405(c)(7).
77 15A N.C. Admin. Code 02H .0506(9).
78 15A N.C. Admin. Code 02H .0506(10).
79 40 C.F.R. § 230.93(e)(1) (2021).
15
V. Conclusion
North Carolina’s rapid pace of growth is expected to continue for the foreseeable future,
and new pressures from intensifying storms will increase the need for healthy wetlands across
the State. That is why, in the absence of certain federal regulation, we need stringent state
wetlands regulations to ensure that growth can occur with necessary measures to protect these
valuable resources. We support the permanent wetlands rules to fill the permitting gap left by
recent changes to federal law. We also urge the Commission to adopt a more protective
permanent rule to ensure that impacts are avoided if possible, managed where necessary, and
mitigated sufficiently in all instances. We respectfully request that the Department fully
incorporate our requested changes.
Thank you for considering these comments. Please contact us at 919-967-1450 if you
have any questions regarding this letter.
Sincerely,
Kelly F. Moser
Senior Attorney

Dakota F. Loveland
Associate Attorney

Geoffrey R. Gisler
Senior Attorney
Attachment A
Exhibit 47
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 1 of 11
1

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

SOUTH CAROLINA COASTAL
CONSERVATION LEAGUE, et al.,

Plaintiffs,

v.

ANDREW R. WHEELER, et al.,

Defendants.

AMERICAN FARM BUREAU
FEDERATION, et al.,

Intervenor-Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 2:20-cv-01687-DCN

DECLARATION OF JOVIAN SACKETT
I, Jovian Sackett, make the following declaration.
1. I am over the age of eighteen (18) and suffer from no legal incapacity. This
declaration is based on my personal knowledge and belief.
2. I am a resident of Durham, North Carolina.
3. I am employed by the Southern Environmental Law Center as the Director of
Geospatial Science. I have a B.A. in Environmental Studies and a B.A. in Geography from the
University of North Carolina at Wilmington and a M.A. in Geography from the University of
South Carolina. I am also a Geographic Information Systems Professional (GISP), certification
number 66528, awarded on 4/25/2012.
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 2 of 11
2

4. In my role as Director of Geospatial Science, I am responsible for the
management of SELC’s Geospatial Team and data; the design and implementation of geospatial
projects (both analytical and cartographic); and the application of, interpretation of, and
communication about geographic data. In other words, I oversee both the production of
geospatial deliverables based on geographic data (usually maps, but summary statistics and data
visualizations too) and the reading and critique of third-party maps and geographic data with
respect to environmental law and policy. I have had similar responsibilities since joining the
Southern Environmental Law Center in 2007.
5. Geographers, like myself, are generally integrative scientists, meaning our
expertise is in the study of the connections and relationships throughout the earth (ex. climate
and society, or land development and ecosystem function). I have experience with geographic
information systems (GIS) as a tool for measuring and studying human/environment interactions
and cartography as a tool for depicting the significant connections between earth objects. My
expertise allows me to understand the difference between the abstracted lines on maps and their
absolute and discrete reality on earth. I then coach environmental attorneys and decision makers
about how to best apply the geographic data (field notes, instruments readings, photography and
sensors) available.
Analysis Background
6. For the present case, I used available science about hydrology/geomorphology
and geospatial data about wetlands to approximate the wetland acreage by water regime in the
entire contiguous United States as well as in selected watersheds. Water regime is a
characteristic to describe the duration and completeness with which wetlands hold water in any
given year. The analyzed watersheds and primary corresponding states were: VA – Potomac
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 3 of 11
3

River,1 Rappahannock River, James River; NC – Cape Fear River, Lake Norman (Catawba
River), Neuse River; SC – Charleston Harbor, Congaree River, Saluda River; GA/AL –
Chattahoochee River.
7. For the purpose of this analysis, I focused on wetland water regimes as described
by the U.S. Fish and Wildlife Service (FWS) National Wetlands Inventory (NWI) using the well-
established Cowardin Classification System. Developed by Cowardin, et al., during the mid-to-
late 1970s the system was intended to “provide basic data on the characteristics and extent of the
Nation’s wetlands and deepwater habitats and should facilitate the management of these areas on
a sound, multiple-use basis.”2, 3 More importantly though, that mandate was driven by a need to
update a previous nationwide system of wetlands inventory from the 1950s in order to document
natural and anthropogenic changes and collect more refined information due to “federal
legislation…passed to protect wetlands.”4 The National Wetlands Inventory exists as a direct
result of the need to better understand and plan for management of the nation’s water resources,
as part of the Clean Water Act of 1972. It is fitting that the most recent version of the NWI
continues to inform decision making about the Clean Water Act today.
8. The National Wetlands Inventory was designed to provide a consistent
classification of wetlands as ecological mapping units for use by FWS.5 Furthermore, NWI
provides a detailed classification of the water regime of each wetland type it maps.

1 The Potomac River watershed also includes portions of West Virginia, Maryland, Pennsylvania, and the District of
Columbia.
2 Documents in the administrative record contain the prefix EPA-HQ-OW-2018-0149 followed by the Docket
Document ID. See Administrative Record Index (Doc. No. 54-1, Ex. 1). In citing to documents in the administrative
record, Plaintiffs have omitted the prefix and cite only to the author, title of the document, its date, and the
Administrative Record Docket Document ID (“AR”).
3 Cowardin, L. M., et al., Classification of Wetlands and Deepwater Habitats of the United States, U.S. Fish and
Wildlife Service (AR 11626) at 2 (1979), https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-
11626 (“Cowardin”). 4 Id.
5 Dahl, T.E., J. Dick, J. Swords, and B.O. Wilen, Data Collection Requirements and Procedures for
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 4 of 11
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9. I focused on wetlands where surface water is rarely or only temporarily present:
Temporarily Flooded (A), Seasonally Saturated (B), Continuously Saturated (D), and
Intermittently Flooded (J) water regime modifiers of the NWI.6 These modifiers refer to water
regimes that are non-tidal, primarily in palustrine (wetland) systems, but also some lacustrine
(lake) and riverine (river) systems.7 This analysis only focused on palustrine systems, since that
is where the majority of these water regimes are represented.
10. Cowardin describes temporarily/intermittently flooded wetlands as including
seasonally flooded basins and flats, including wet meadows.8 For example, despite being
“largely controlled by precipitation and evapotranspiration,” Carolina and Delmarva bays
experience “nearly continuous shallow ground-water recharge” and periodic shallow ground-
water discharge, resulting in periods with no surface water.9
11. Saturated wetlands include bogs, pocosins, fens, and similar wetland types.10 Fens
are a kind of slope wetland 11 that is groundwater driven, while bogs and pocosins typically
collect precipitation.12 These wetland types are not typically flooded by perennial or intermittent
streams, but rather “temporarily hold water and then slowly release it to downstream waters.”13

Mapping Wetland, Deepwater and Related Habitats of the United States. Division of Habitat and
Resource Conservation (version 2) at 6 (2015), https://www.fws.gov/wetlands/documents/Data-Collection-
Requirements-and-Procedures-for-Mapping-Wetland-Deepwater-and-Related-Habitats-of-the-United-States.pdf.
(“Dahl”). 6 The capital letters used to represent water regime modifiers in NWI are reassigned from the letters used in
Cowardin, et. el. (1979).
7 Federal Geographic Data Committee, Wetlands Subcommittee, Classification of Wetlands and Deepwater Habitats
of the United States, Docket ID No. FGDC–STD-004-2013, Second Edition (AR 11629) at 38 (August 2013),
https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-11629. (“NWI Metadata”).
8 Cowardin at 13.
9 EPA Office of Res. & Dev., Connectivity of Streams and Wetlands to Downstream Waters: A Review and
Synthesis of the Scientific Evidence (AR 11691) at B-5, https://www.regulations.gov/document?D=EPA-HQ-OW-
2018-0149-11691 (“Science Report”). 10 Cowardin at 28. 11 Science Report at 4-20. 12 Science Report at 4-21. 13 See U.S. Environmental Protection Agency & U.S. Army Corps of Engineers, Technical Support Document for
the Clean Water Rule: Definition of Waters of the United States (see AR 11460, document 285) at 340 (May 27,
2015), https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20869.
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 5 of 11
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12. Cowardin illustrates the position of these water regimes, with respect to others,
across a landscape matrix of palustrine and upland systems, as copied here in Figure 1:14

Figure 1
13. In their Economic Analysis for the Navigable Waters Protection Rule: Definition
of “Waters of the United States” (2020), the Environmental Protection Agency and Corps of
Engineers cited the NWI metadata pertaining to water regime modifiers. Specifically, the
agencies noted that Temporarily Flooded wetlands only have surface water for “a few days to a
few weeks” during the growing season and Intermittently Flooded wetlands may have years

14 Cowardin at 13.
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 6 of 11
6

between periods of inundation.15 In addition, Seasonally Saturated wetlands typically do not
have surface water for longer than “a few days after heavy rain and upland runoff.”16 In
Continuously Saturated wetlands, “widespread surface inundation is rare.”17
14. In sum, the presence of surface water in these wetland regimes is sporadic and
most often due to elevated vertical (groundwater) or temporal (precipitation).18 To the extent
these wetlands receive overflow from a perennial or intermittent river or stream, that flooding is
also sporadic and short-lived.19 Therefore, these water regimes are the most likely to be
excluded from the new “waters of the United States” definition. They are collectively referred to
below as the “target” water regimes.
Technical Analysis
15. To complete this analysis, I used Esri ArcGIS Pro v.2.4.2 for geospatial tasks, R
v3.5.1 for generating summary statistics, and Microsoft Excel 2019 for combining and
presenting results.
16. Data collection was the first phase of the study. Although there is no single
dataset that maps all the nation’s streams, wetlands, and watersheds systematically, there are best
available nationwide data approximating streams, wetlands, and watersheds published by the
mapping divisions of U.S. government agencies. Those data are published for helping
understand the complexities and inter-relationships of human-environment interactions, as it
relates to natural resource management and policy. My intent was to create both a nationwide

15 U.S. Environmental Protection Agency & U.S. Army Corps of Engineers, Economic Analysis for the Navigable
Waters Protection Rule: Definition of “Waters of the United States (AR 11572) at 101 (Jan. 22, 2020) (“Economic
Analysis”). 16 Id. 17 Id. 18 Science Report at 1-4–1-7.
19 Id.
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dataset of wetlands, classified by water regime, and to have that dataset subdivided by both
ecological (watersheds) and political (county/state) geographic units.20 Geospatial data for 12-
digit hydrologic units (watersheds) came from the U.S. Geological Survey (USGS) Watershed
Boundaries Dataset (WBD), 4th edition, “to ensure the digital geographic data are usable with
other related” geospatial data.21 The geospatial dataset for wetlands, the FWS’s NWI v.2,
affirms its applicability to this type of analysis, “[t]he information collected using these
requirements and procedures are intended to support the decision-making process.”22, 23 From
their metadata, I knew neither of these datasets were designed to represent jurisdictional
determinations but are intended to map the nation’s waters and wetlands using uniform national
mapping standards developed by U.S governmental agencies. The NWI applies the Cowardin
Classification System, designed to provide a consistent classification of wetlands as ecological
mapping units for use by FWS.24
17. In order to compile NWI data for the contiguous United States, SELC hired and I
supervised Esri, a geospatial software and services company, to download and process the source
data with computing power much greater than what SELC possesses. Esri downloaded all the
source data for each state from FWS, and produced enhanced geodatabases of the contiguous
United States, with wetlands aggregated by state and county geography in one database and 12-

20 Geospatial data for county and state boundaries, were from the U.S. Census Bureau, and although built into the
final data through analysis, were not included in any of my results, in order to focus solely on the ecological side of
the impacts. 21 U.S. Geological Survey and U.S. Department of Agriculture, Natural Resources Conservation Service, Federal
Standards and Procedures for the National Watershed Boundary Dataset (WBD) at 1 (2013),
http://pubs.usgs.gov/tm/tm11a3/. 22 NWI v.2 represents the methodologies of Dahl et.al. Within the version numbers, actual data are updated more
frequently, and this analysis used data, associated with the October 2019 release, the most recently available at the
time.
23 Dahl, et. al. at 5.
24 Dahl, et. al. at 6.
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 8 of 11
8

digit HUC watersheds in another.25 I verified Esri’s process and reformatted the summary tables
they provided.
18. At this stage, I brought an additional team member, Libbie Weimer, geospatial
analyst, in to help work with the data. The geodatabases created by Esri were incredibly large,
and therefore difficult to summarize with the GIS software, ArcGIS Pro. Ms. Wiemer used the
statistical programming language, R, to create more workable summary tables of data that
estimated the number of acres of wetlands assigned to each NWI wetland classification across
the contiguous United States.
19. This table (Table 1) shows the HUC codes corresponding to each watershed
selected for in-depth analysis:
Table 1

20. In their data processing, Esri isolated the water regime modifier from the full
Cowardin code in NWI, using the Wetlands Decoder Table, which “provides a crosswalk from
U.S. Fish and Wildlife Service, National Wetlands Inventory (NWI) wetlands data, as defined by

25 Esri (2020). NWI Data Processing Steps.
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 9 of 11
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the Federal Wetland Mapping Standard, to the complete wetland definitions, as defined by the
Federal Wetlands Classification Standard.”26
21. In order to estimate wetland types by target water regime, I utilized the summary
tables for water regime codes of the NWI dataset, those created in R, within the watersheds of
interest listed in Table 1.
22. After creating a new row of values for the select watersheds, based on their HUC
code, I then summarized the results in Excel. A single pivot table was created to show columns
for wetland acres in each target water regime and rows for each watershed. The values of the
pivot tables were the total acres of wetlands classified by each water regime for each Table 1
watershed. Some values were zero.
Results
23. As shown in Table 2, and based on my analysis, I estimate that 45,103,442 acres
of wetlands in the contiguous United States are classified as Temporarily Flooded, Seasonally
Saturated, Continuously Saturated, or Intermittently Flooded. Table 2 also contains the results
for the selected watersheds analysis:

26 U.S. Fish and Wildlife Service, Wetland Classification Codes (2019),
https://www.fws.gov/wetlands/Data/Wetland-Codes.html (downloaded Feb. 3, 2020).
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 10 of 11
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Table 2

24. The results of my analysis estimate the acreage for a subset of wetlands that less
frequently have surface water and are therefore likely to be excluded by the new waters of the
United States definition. This vulnerable subset includes waters classified as Temporarily
Flooded, Seasonally Saturated, Continuously Saturated, and Intermittently Flooded. Estimating
the exact amount of any type of wetlands that lose jurisdiction under the Rule would require on-
the-ground, site-specific analysis. However, the analysis described above provides estimates
based on the most complete nationwide geospatial data, while honoring the limitations of scale
and the data’s intended use.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge, information, and belief.
Executed on: July 10, 2020

___________________________
Jovian Sackett
2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 11 of 11
Attachment B
White Paper: The Importance of Small Wetlands in
North Carolina
December 2021
https://www.fws.gov/refuge/Mountain_Bogs/multimedia/deer.html#
Prepared by Grayson Giugno and the Carolina Wetlands Association
www.carolinawetlands.orgDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 2
Abstract
North Carolina wetlands are regulated by the federal and state governments. How wetlands
are protected and regulated by the federal government changes over time, depending on how
jurisdictional wetlands are defined and rules are interpreted. North Carolina includes a more
extensive definition of wetlands that are protected and regulated; however, when it comes to
permitting impacts to wetlands, some impacts are “deemed permitted” and reporting impacts
is not required. Because wetland regulations are focused on wetland size, small wetlands can
be lost with no reporting or mitigation required. Services provided by small wetlands are
generally not considered when regulations are created and implemented. Small wetlands
provide water quality, flood storage, biodiversity, and economic benefits and should be
protected.
Problem Statement
Due to human-influenced land use change and development, a substantial amount of wetlands
have been lost in the US. The Department of Agriculture’s National Resource Conservation
Service (NRCS) estimates that “in the lower 48 states, there were 221 million acres of land
covered in wetlands and that by 1984, approximately 54% of the wetlands in the US had been
drained or filled”.1 “Before European settlement of North America, there were an estimated
220 million acres of wetlands in what is now the contiguous 48 states. About half that acreage
has disappeared, mostly drained for crop production."2 In the mountains of North Carolina,
mountain bogs, a rare wetland habitat, have been estimated to cover over 5,000 acres in the
past, but now only cover about 500 acres (Wetlands in the North Carolina Mountains)."Over
51% of the forested palustrine wetlands in North Carolina have been disturbed, with
approximately 33% of pocosins having been destroyed."3 . Furthermore, Carolina bays, a unique
wetland habitat found in the coastal region of eastern states from New Jersey to Florida, are
not sufficiently mapped and inventoried in the past and many have been drained and converted
for agricultural use, causing the loss of important coastal ecosystems 4.
Wetlands are a vital environmental resource that provide a wide variety of benefits to humans
and should be protected; however, the level of protection varies with federal and state
regulations. Wetland regulations are typically based on the location, type, and size of a
wetland, with an emphasis on wetland size 5. The importance of small wetlands is often
misunderstood and therefore overlooked during the rulemaking process. Snodgrass outlines
the three false assumptions about small wetlands to be “(1) small wetlands contain water for
short portions of the year; (2) small wetlands support few species; and (3) species found in
small wetlands are also found in larger wetlands”.5 The value of small wetlands needs to be
better understood to promote their protection.DRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 3
Background
Small wetlands in North Carolina
The state of North Carolina is divided into four different Level III ecoregions (Figure 1). The
Blueridge ecoregion contains the mountains of North Carolina and is the farthest inland
ecoregion of the state. The Piedmont ecoregion is located between the escarpment bordering
the Blueridge mountains and the fall line bordering the Inner coastal plain. The Piedmont is
where most urban centers are located in North Carolina. The Coastal plain ecoregion consists of
the Inner and outer coastal plain separated by a sand ridge. These ecoregions are along the
Atlantic coast.
Figure 1. Small wetlands (less than 1 acre) in North Carolina.
North Carolina hosts a variety of wetlands that can be categorized into general wetland types,
as described by the NC Wetland Assessment Method (NCWAM), based on where they occur on
the landscape and the functions they perform 6 (Table 1). Wetlands are defined as areas
typically in a transitional zone between terrestrial and aquatic ecosystems that are either
partially or completely inundated with water periodically throughout the year. The U.S.
Environmental Protection Agency defines wetlands as “areas where water covers the soil, or is
present either at or near the surface of the soil all year or for varying periods of time during the
year, including during the growing season.”7 They are often identified by their hydric soils andDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 4
plants as well as seasonal flooding descriptive of the area 8. For the purposes of this report,
small wetlands are less than an acre in size. Small wetlands occur across all four Level III
ecoregions in varying proportions (Figure 1, Table 2).
Table 1. Common NCWAM wetland types for small wetlands in North Carolina.
Wetland
type
Geographic
Distribution
Abundance
(Common,
Moderate,
or Rare)
Flood
Control
Ground-
water
protection
Filter water
pollution
Food/
commercial
fisheries
Recreation Wildlife
habitat
Climate
regulation
Basin
wetland Statewide Common X X X X X
Bog Mountains Rare X X X X
Floodplain
pools Statewide Common X X X
Headwater
forest Statewide Common X X X
Non-riverine
swamp
forests
Statewide Moderate X X X X
Pocosin
wetlands Coastal plain Moderate X X X X
Seep Statewide Common X X
Table 2. Acreage and count of wetlands and small wetlands (less than 1 acre) in North
Carolina*.
Region of NC
All Wetlands Small Wetlands
Percent of Wetlands
that are Small Wetlands
Count Area (acres)Count Area (acres)Count (%)Area (%)
Mountain 3,028 8,128 1,106 527 37 6
Piedmont 31,322 221,631 9,623 4,916 31 2
Coastal Plain 175,826 3,702,870 38,837 19,471 22 1
Average 70,059 1,310,876 16,522 8,305 24 1
Total 210,176 3,932,629 49,566 24,914 24 1
*NWI data dated October 4, 2019 were used to calculate numbers shown in the table.DRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 5
Most of the wetlands in North Carolina are located in the coastal plain (Inner and Outer Coastal
Plain Level III ecoregion) and occur “in small depressions, in swales [low lying areas between
sand dunes or ridges], along streams and rivers, and next to sounds and the ocean”.9 This
region contains 38,837 small wetlands that are below an acre in area that cover 19,471 acres.
Of the wetlands located in the coastal plain, only 22% are considered small, the lowest
percentage of small wetlands among the three ecoregions (Table 2). In the coastal plain region,
small wetlands are often vernal pools and “ are small sites that flood seasonally and occur
throughout the Coastal Plain and Sandhills. They are dominated by a dense to sparse herb layer
and when dry are subject to fires spreading from adjacent uplands. These Vernal Pools are
almost always key amphibian breeding sites because they contain no fish."10 These small
habitats are in danger due to developmental drainage that alters the hydrology of the wetland.
The change in land use towards agriculture is a major threat to these coastal ecosystems.10
The Piedmont ecoregion has the most urban development, therefore land development is a
major threat to small wetlands. This ecoregion contains 9,623 small wetlands that cover 4,916
acres of land. Of the wetlands in the Piedmont, 31% are considered small wetlands (Table 2).
"Piedmont wetland habitats are heavily impacted, and have been greatly reduced, by
development, roads and drainage throughout the region. While often small in size, cumulatively
these habitats provide critical breeding habitat for many amphibian species. The loss of
ephemeral wetland communities in the Piedmont has strong ramifications for future amphibian
populations."11 These habitats contain many wetland shrubs and herbs distinct to the area.
The mountains (Blue Ridge Level III ecoregion) of North Carolina have the least amount of area
covered by small wetlands with only 1,106 small wetlands covering 527 acres. Of the three
ecoregions, this region has the highest percentage of wetlands that are considered small (37%)
(Table 2). Mountain bogs are the most common small mountain wetland that occur when
stormwater runoff is captured and held in flat mountainous areas for short periods of time.
These habitats are crucial to the endangered bog turtle and are threatened by invasive
species.12
In a study done by Susan Gale, the history of underreporting and misrepresentation of small
wetlands on the part of the NWI can be damaging to current spatial data on these ecosystems.
This underrepresentation may harm further studies of the presence and importance of small
wetlands in North Carolina. The accuracy of the NWI was recently assessed for NC by NCDWR
(NCDWR 2021) and found to be of inconsistent and often poor accuracy, particularly for smaller
wetlands (≤1.0 ac.). This was particularly problematic in the central and western portions of the
state, where wetlands tend to be much smaller than 1.0 ac. in size, and so there were high rates
of omission in these areas."13 This information is important because it shows how small
wetlands are under-represented with current available spatial data. This is something that can
be explored through more in depth GIS data collection and research.DRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 6
Watershed benefits of small wetlands
A common misconception is that small wetlands are often isolated. These wetlands are a part
of the larger surrounding watershed and therefore influence the other ecosystems around
them. Current recommendations suggest that wetland surface area be at least 1% of the
surrounding watershed area to ensure significant water quality improvement.14 Small wetlands
have many essential functions distinct from larger ones that influence the water systems which
they are a part of, studies have shown that small, isolated wetlands have higher rates of
evapotranspiration than larger bodies of water.14 This indicates that smaller wetlands, often
called retaining ponds, reduce runoff more efficiently than larger ones. Evapotranspiration is an
important ecosystem service provided by small wetlands that stabilize the health of the
surrounding water system (Figure 4). "Increases in impervious surfaces causes excess
stormwater runoff and pollution from point and non-point sources, which degrades water
quality. Most amphibians are highly sensitive to changes in water quality."10 Basin wetlands,
bogs, floodplain pools, headwater forests, non-riverine swamp forests, pocosins wetlands, and
seeps occupy a crucial land position, allowing them to retain storm and agricultural runoff
before it reaches other bodies of water, offering filtration and treatment of harmful pollutants
and sediments in the process.
Figure 2.The process of evapotranspiration and the movement of water through an ecosystem.
https://upload.wikimedia.org/wikipedia/commons/thumb/8/80/Surface_water_cycle.svg/1200
px-Surface_water_cycle.svg.png
“As water enters a wetland, it is slowed by plant roots and rocks, then suspended sediments fall
to the wetland bed where they settle and excess nutrients are taken up by plants and
microorganisms . This natural filtration process makes the water cleaner for drinking,DRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 7
swimming, and provides a habitat for plants and animals”.15 Sediment pollution is a major issue
in the piedmont of North Carolina and small wetlands that treat runoff directly and indirectly
remediate biodiversity in the surrounding area. Due to the efficiency of wetlands in water
filtration and runoff control, engineers and scientists construct artificial wetlands that use the
same natural processes to improve water quality to fill the ecological services of lost
wetlands.15 These services make wetlands an efficient, environmentally friendly, and low-cost
alternative to waste treatment. Because wetlands remove nutrients, pesticides, and sediments
from surface waters, they are highly efficient, low-cost alternatives for treating sewage and
animal waste. The water and sedimentation deposition of the floodplain is drastically altered
through increased flooding events and small wetlands offer natural stability to sediments and
water in the floodplain.
Flood storage benefits of small wetlands
https://www.circleofblue.org/2015/world/while-south-carolina-floods-u-s-wrestles-with-urban-stormwater/
The ability for small wetlands to more effectively reduce runoff through higher rates of
evapotranspiration than larger wetlands means that they are vital for flood water storage.
Wetlands have the ability to hold water and slowly release it over time, leading to decreased
floodwater downstream and thus less flood damages.16 Because of wetland degradation
throughout the United States, flood damages are higher and more costly than if more wetland
buffer areas were functional. These floods cause an average of $2 billion in damages
nationwide and the ensuing loss of life and property can be detrimental to affected areas.15
Changing the flow of water through dams has altered the timing and intensity of flooding
events that impact the floodplain according to NC Wildlife. The impacts of climate change on
the sea level and increasing intensity and frequency of storm events has led to more flooding inDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 8
recent years in North Carolina and worldwide.17 "Wetlands can play a role in reducing the
frequency and intensity of floods by acting as natural buffers, soaking up and storing a
significant amount of floodwater. A wetland can typically store about three-acre feet of water,
or one million gallons." "After peak flood flows have passed [from hurricanes and large storm
events], wetlands slowly release the stored waters, reducing property damage downstream or
inland. One reason floods have become more costly is that over half of the wetlands in the
United States have been drained or filled.”15 North Carolina’s Wetland Forests Provide $8
Billion Value in protection from extreme events and water flow regulation could increase up to
$1.5 billion by investing in conservation. Between 1851 and 2004, forty-six hurricanes and
twelve major hurricanes (categories 3–5) made landfall on the North Carolina coastline. In
coastal areas, wetlands have been proven to slow saltwater intrusion in groundwater thus
protecting freshwater habitats as well as contributing to coastal stabilization.18
Biodiversity benefits of Small Wetlands
https://www.fws.gov/refuge/Mountain_Bogs/multimedia/deer.html#
Wetlands are host to a variety of species and habitats, depending largely on their ecoregion in
North Carolina. Small wetlands throughout the Piedmont and Blueridge ecoregions of North
Carolina harbor at least 80 endangered species and about 70% of endangered species in the
state depend on wetlands for survival.19 One rare small wetland is the mountain bog that is
found in North Carolina’s Blueridge Mountain ecoregion. This wetland type is often found
where mountain elevations level out, catching and storing rainwater runoff as it travels downDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 9
the mountain side. This rare environment is home to many species of endangered plants such
as Sarracenia rubra (mountain sweet pitcher plant) and Sagittaria fasciculata (bunched
arrowhead) that thrive in these habitats due to deposition of organic soils (NC Division of Water
Resources, 2018). Alongside the plants and moss that thrive in mountain bogs, the Glyptemys
muhlenbergii (bog turtle) is a unique and endangered animal that can be found in these small,
mountainous wetland habitats. Invasive species such as Rosa multiflora (multiflora rose) and
Microstegium vimineum (Japanese stiltgrass) are commonly found in bogs and the invasion of
these species grows as droughts and temperatures increase which threatens the quality of the
wetlands.12
Small wetland habitats are critical breeding ground for amphibian species and crayfish because
they flood seasonally and are typically isolated which means they do not have established fish
predators that may be present in larger water bodies.10 “Seep wetlands can also be small
wetlands found throughout North Carolina and are a vital habitat for salamanders.”9 These
areas tend to attract wading birds, waterfowl, and songbirds since they are prime nesting and
feeding areas.10 Small wetlands are also an important clean water source for wildlife to drink,
especially in areas surrounded by uplands. Unfortunately, these wetlands are easily affected by
nearby development and draining done primarily for agriculture.10 "Wetland wildlife species
have experienced long-term declines. Loss and degradation of the south aquatic system and
loss of much of the native fauna contribute to the decline of global biotic diversity."20
Human specific benefits of small wetlands
https://www.aquarium.co.za/blog/entry/11-reasons-why-wetlands-are-vital-for-humans-and-animals
According to the US Department of Agriculture, Natural Resources Conservation Service of
North Carolina, more than half of all adults in the United States (98 million people) hunt, fish,
photograph, or otherwise interact with nature and wildlife recreationally.20 These activitiesDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 10
heavily depend on the health of local wetlands. The recreational use of natural areas
contributed an estimated $59.5 billion to the national economy in 1991, enriching states'
economies through interstate visitors to recreational wetlands. In 2001, more than 82 million
Americans spent $108 billion participating in recreational wetland use.15 These revenues from
wetlands may offer economic enrichment to North Carolina, seeing that small local wetlands
were protected and maintained. In 2011, southern states like North Carolina gained $48 billion
through recreational wetland use, money that could be lost if wetlands were not protected.21
Often when discussing the benefits of wetlands and their use, the environmental services that
they provide are calculated into economic value. One type of wetland, forested wetlands, are
often sourced for lumber but conservation, social welfare, and public interest in forest wetlands
is 15 times higher than the economic value of timber produced by these habitats.21 The
ecological services of these wetlands are predicted to be worth more than $500 billion,
meaning that if these ecosystems were in danger or not functioning correctly, the economic toll
it would take to replace these services would be immense.
Solution
"For the wetlands we studied, none of the implied assumptions of using wetland size as the
primary criterion for assessing wetland function appear to be valid. We found little or no
relationship between wetland size and hydroperiod or between wetland size and species
richness for a representative set of wetlands and organisms from the SRS. Furthermore, short-
hydroperiod wetlands appear to be important for maintaining populations of wetland-
associated species found only in these systems. Our analysis suggests that short hydroperiods
occur predominantly among smaller wetlands, indicating that preservation of smaller wetlands
will be essential to the conservation of many wetland-associated species." "Overall, none of the
assumptions concerning the use of wetland size as the primary criterion of wetland function are
valid, and we argue that other criteria need to be developed and incorporated into wetland
regulations."5 As federal regulations surrounding wetland protection continue to change, it is
important that state rules North Carolina incorporate protecting small wetlands.
Conclusion
https://www.ducks.org/conservation/where-ducks-unlimited-works/prairie-pothole-region/saving-small-wetlandsDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 11
Small wetlands offer considerable benefits to North Carolina through environmental and
economic services. These wetlands improve water quality, are a main source of water and
sediment filtration and settlement, and often prove to be more efficient at evapotranspiration
than larger wetlands. They also provide flood protection against growing impacts from climate
change to North Carolina including rising sea levels, stronger storms, and increased heavy
downpour rainfall events. Small wetlands are habitat for rare, threatened, and endangered
species and therefore provide irreplaceable services in the face of growing extinction events
and must be preserved. They also serve as critical breeding grounds for amphibian species and
are necessary feeding and drinking sources for wildlife. They also support recreational
opportunities and stimulate the economy. The cost associated with replacing wetland services
is normally higher than the price of the natural resources that may often be extracted from
them. The importance of small wetlands warrants their protection. Because federal wetland
regulations fluctuate over time and the use of size as the primary consideration, the state of
North Carolina should develop and maintain regulations that give protection to small wetlands.5
References
1. Natural Resource Conservation Service. (2017).
https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/water/wetlands/
2. NRCS North Carolina, US Department of Agriculture, Natural Resources Conservation
Service North Carolina. (Nov. 1995). “Wetland Values and Trends.”
www.nrcs.usda.gov/wps/portal/nrcs/detail/nc/home/?cid=stelprdb1042133
3. CJ Richardson. (2003). “Pocosins: hydrologically isolated or integrated wetlands on the
landscape?“https://link.springer.com/article/10.1672/0277-
5212(2003)023[0563:PHIOIW]2.0.CO;2
4. Sharitz, R.R. Carolina bay wetlands: “Unique habitats of the southeastern United
States”. Wetlands 23, 550–562 (2003).https://doi.org/10.1672/0277-
5212(2003)023[0550:CBWUHO]2.0.CO;2
5. Snodgrass, Joel W., et al. (Dec. 2001) “Relationships among Isolated Wetland Size,
HYDROPERIOD, and Amphibian SPECIES Richness: Implications for Wetland
Regulations.” Conservation Biology, vol. 14, no. 2, 24 , pp. 414–419., doi:10.1046/j.1523-
1739.2000.99161.x.
6. N.C. Wetland Functional Assessment Team, (2016), “N.C. Wetland Assessment Method
(NC WAM) User Manual”
7. The United States Environmental Protection Agency, (2021) What is a Wetland?
https://www.epa.gov/wetlands/what-wetlandDRAFT
The Importance of Small Wetlands in North Carolina
Prepared by Grayson Giugno and the Carolina Wetlands Association 12
8. Blackwell, Martin S., and Emma S. Pilgrim. (16 Dec. 2011) “Ecosystem Services Delivered
by Small-Scale Wetlands.” Hydrological Sciences Journal, vol. 56, no. 8, , pp. 1467–1484.,
doi:10.1080/02626667.2011.630317.
9. NC Division of Water Resources.( 2018-2021) North Carolina Wetlands Information.
https://www.ncwetlands.org. Published by the North Carolina Division of Water
Resources, Water Sciences Section.
10. North Carolina Wildlife Resources Commission, (2004) “Coastal Small Wetland
Communities”
11. North Carolina Wildlife Resources Commission, (2015) “Piedmont Small Wetland
Communities”
12. North Carolina Wildlife Resources Commision, (2015) “Mountain Habitats: Bogs and
Fens.”
13. Susan Gale, NCDWR, 2021, Automated Identification of Wetlands Using GIS in North
Carolina
14. Bass, K. L., and R. O. Evans. 26 Apr. 2012,“Water Quality Improvement by a Small In-
Stream CONSTRUCTED Wetland in North Carolina's Coastal Plain.” Watershed
Management and Operations Management 2000, doi:10.1061/40499(2000)137.
15. Office of Water (2006), “Economic Benefits of Wetlands”
https://www.epa.gov/sites/default/files/2016-02/documents/economicbenefits.pdf
16. “Wetland Importance.” Wetlands in the North Carolina Mountains, NC Mountain
Wetlands. ncmntwetlands.webs.com/wetland-importance
17. Carolina Wetlands Association (December 2020), “Wetlands and Climate Change”
http://carolinawetlands.org/wp-
content/uploads/2021/04/WetlandsClimateChange_WhitePaper-Final-Dec2020.pdf
18. Braun, D Greg, and Valerie C Clark. (14 Apr. 2017) “The Benefits of Small Wetlands.”
19. Bales, Jerad D, and Douglas J Newcomb. (1996) “North Carolina Wetland Resources.”
National Water Summary on Wetland Resources, , doi:10.3133/wsp2425.
20. US Department of Agriculture, Natural Resources Conservation Service North Carolina
(1995) “Wetlands Values and Trends”
https://www.nrcs.usda.gov/wps/portal/nrcs/detail/nc/home/?cid=stelprdb1042133
21. Davis, Sam L. (2018) “Treasures of the South: the True Value of Wetland Forests.”DRAFT
Attachment C
Virginia Administrative Code
Title 9. Environment
Agency 25. State Water Control Board
Chapter 660. Virginia Water Protection General Permit for Impacts Less Than One-Half Acre

9VAC25-660-30. Authorization to impact surface waters.
A. Any person granted coverage under the VWP general permit effective August 2, 2016, may
permanently or temporarily impact less than one-half acre of nontidal wetlands or open
water and up to 300 linear feet of nontidal stream bed, provided that:
1. The applicant submits notification as required in 9VAC25-660-50 and 9VAC25-660-60.
2. The applicant remits any required permit application fee.
3. The applicant receives general permit coverage from the Department of Environmental
Quality and complies with the limitations and other requirements of the VWP general
permit; the general permit coverage letter; the Clean Water Act, as amended; and the State
Water Control Law and attendant regulations.
4. The applicant has not been required to obtain a VWP individual permit under 9VAC25-
210 for the proposed project impacts. The applicant, at his discretion, may seek a VWP
individual permit or coverage under another applicable VWP general permit in lieu of
coverage under this VWP general permit.
5. Impacts, both temporary and permanent, result from a single and complete project,
including all attendant features.
a. Where a road segment (e.g., the shortest segment of a road with independent utility
that is part of a larger project) has multiple crossings of surface waters (several single
and complete projects), the board may, at its discretion, require a VWP individual
permit.
b. For the purposes of this chapter, when an interchange has multiple crossings of
surface waters, the entire interchange shall be considered the single and complete
project.
6. The stream impact criterion applies to all components of the project, including
structures and stream channel manipulations.
7. When required, compensation for unavoidable impacts is provided in accordance with §
62.1-44.15:23 of the Code of Virginia, 9VAC25-660-70, and the associated provisions of
9VAC25-210-116.
B. The board waives the requirement for coverage under a VWP general permit for activities
that occur in an isolated wetland of minimal ecological value, as defined in 9VAC25-210-10.
Upon request by the board, any person claiming this waiver shall demonstrate to the
satisfaction of the board that he qualifies for the waiver.
C. Coverage under this VWP general permit does not relieve the permittee of the
responsibility to comply with any other applicable federal, state, or local statute, ordinance,
or regulation.
D. Coverage under a nationwide or regional permit promulgated by the U.S. Army Corps of
Engineers (USACE), and for which the board has issued § 401 certification in accordance with
9VAC25-210-130 H as of August 2, 2016, shall constitute coverage under this VWP general
permit, unless a state program general permit (SPGP) is required and granted for the activity
or impact.
E. When the board determines on a case-by-case basis that concerns for water quality and the
aquatic environment so indicate, the board may require a VWP individual permit in
accordance with 9VAC25-210-130 B rather than granting coverage under this VWP general
permit.
Statutory Authority
§§62.1-44.15 and 62.1-44.15:5 of the Code of Virginia; § 401 of the Clean Water Act (33 USC §
1251 et seq.)
Historical Notes
Derived from Virginia Register Volume 17, Issue 22, eff. October 1, 2001; amended, Virginia
Register Volume 21, Issue 8, eff. January 26, 2005; Volume 22, Issue 21, eff. August 1, 2006;
Volume 32, Issue 21, eff. August 2, 2016; Volume 38, Issue 1, eff. September 29, 2021.
Attachment D
Virginia Administrative Code
Title 9. Environment
Agency 25. State Water Control Board
Chapter 210. Virginia Water Protection Permit Program Regulation

Part II. VWP Permit Application and Development
9VAC25-210-130. VWP general permits.
A. The board may issue VWP general permits by regulation for certain specified categories of
activities as it deems appropriate, except as limited by subdivision D 2 of § 62.1-44.15:21 of
the State Water Control Law.
B. When the board determines on a case-by-case basis that concerns for water quality and the
aquatic environment so indicate, the board may require individual applications and VWP
individual permits rather than approving coverage under a VWP general permit regulation.
Cases where an individual VWP permit may be required include the following:
1. Where the activity may be a significant contributor to pollution;
2. Where the applicant or permittee is not in compliance with the conditions of the VWP
general permit regulation or coverage;
3. When an applicant or permittee no longer qualifies for coverage under the VWP general
permit; and
4. When a permittee operating under VWP general permit coverage requests to be excluded
from coverage by applying for a VWP individual permit.
C. When a VWP individual permit is issued to a permittee, the applicability of the VWP
general permit coverage to the individual permittee is automatically terminated on the
effective date of the VWP individual permit.
D. When a VWP general permit regulation is issued, which applies to a permittee that is
already covered by a VWP individual permit, such person may request exclusion from the
provisions of the VWP general permit regulation and subsequent coverage under a VWP
individual permit.
E. VWP general permit coverage may be revoked from an individual permittee for any of the
reasons set forth in 9VAC25-210-180 subject to appropriate opportunity for a hearing.
F. The permittee shall be required to submit a written notice of project completion and
request a permit termination by consent within 30 days following the completion of all
activities in all permitted impact areas in accordance with subsection 90 A of the applicable
VWP general permit regulation.
G. Activities authorized under a VWP general permit and general permit regulation shall be
authorized for the fixed term stated in the applicable VWP general permit and VWP general
permit regulation.
H. Unless prohibited from coverage under a VWP general permit, the board may certify or
certify with conditions a general, regional, or nationwide permit proposed by the U.S. Army
Corps of Engineers (USACE) in accordance with § 401 of the federal Clean Water Act as
meeting the requirements of this chapter and a VWP general permit, provided that the
nationwide or regional permit and the certification conditions:
1. Require that wetland or stream impacts be avoided and minimized to the maximum
extent practicable;
2. Prohibit impacts that cause or contribute to a significant impairment of state waters or
fish and wildlife resources;
3. Require compensatory mitigation sufficient to achieve no net loss of existing wetland
acreage and functions or stream functions and water quality benefits;
4. Require that compensatory mitigation for unavoidable wetland impacts be provided in
accordance with § 62.1-44.15:23 of the Code of Virginia and 9VAC25-210-116; and
5. Require that compensatory mitigation for unavoidable stream impacts be provided in
accordance with § 62.1-44.15:23 of the Code of Virginia and 9VAC25-210-116, including an
analysis of stream impacts utilizing a stream impact assessment methodology approved by
the board.
I. The certifications allowed by subsection H of this section may be provided only after the
board has advertised and accepted public comment on its intent to provide certification for at
least 30 days.
J. Coverage under a general, regional, or nationwide permit promulgated by the USACE and
certified by the board in accordance with this section shall be deemed coverage under a VWP
general permit regulation upon submission of proof of coverage under the general, regional,
or nationwide permit and any other information required by the board through the
certification process. Notwithstanding the provisions of 9VAC25-20, no fee shall be required
from applicants seeking coverage under this subsection.
Statutory Authority
§§62.1-44.15 and 62.1-44.15:5 of the Code of Virginia; § 401 of the Clean Water Act (33 USC §
1251 et seq.)
Historical Notes
Derived from VR680-15-02 § 2.6, eff. May 20, 1992; amended, Virginia Register Volume 17,
Issue 21, eff. August 1, 2001; Volume 23, Issue 21, eff. July 25, 2007; Volume 24, Issue 9, eff.
February 6, 2008; Volume 25, Issue 5, eff. December 10, 2008; Errata, 25:9 VA.R. 1826 January
5, 2009; amended, Virginia Register Volume 32, Issue 21, eff. August 2, 2016; Volume 35,
Issue 4, eff. November 14, 2018; Volume 38, Issue 1, eff. September 29, 2021.
Attachment E

1
Incorporating the National Research Council’s Mitigation Guidelines
Into the Clean Water Act Section 404 Program

BACKGROUND

In its comprehensive report entitled “Compensating for Wetland Losses Under the Clean Water Act,”
the National Research Council (NRC) provided ten guidelines to aid in planning and implementing
successful mitigation projects (“Operational Guidelines for Creating or Restoring Wetlands that are
Ecologically Self-Sustaining”; NRC, 2001). Please note that these guidelines also pertain to
restoration and enhancement of other aquatic resource systems, such as streams. Each of the ten
guidelines can generally be described as A) basic requirement for mitigation success, or B) guide for
mitigation site selection. The following sections include both the original text of the NRC guidelines,
in italics, as well as a discussion of how applicants and field staff can incorporate these guidelines into
the development and review of mitigation projects.

A. Basic Requirements for Success

When considering mitigation sites it is important to note that wetland mitigation is not a precise, exact
science and predictable results are not always obtainable. Having an adaptive management attitude is a
necessity. One should incorporate experimentation into the mitigation plan when possible. This may
mean using experimental plots within a mitigation site with different controls, replication, different
treatments, inputs, etc., to determine if specific mitigation efforts are effectively meeting the desired
goals. This requires detailed planning, effective implementation of the mitigation project, close
monitoring (both short and long term) of the implemented plans and finally adjusting to intermediate
results with an adaptive attitude and additional modifications to obtain long range wetland and
watershed goals. In addition, researchers have found that restoration is the most likely type of
mitigation to result in successful and sustainable aquatic resource replacement. Moreover, numerous
studies in a variety of landscapes and watershed types have shown that of all factors contributing to
mitigation success, attaining and maintaining appropriate hydrological conditions is the most
important. The following NRC guidelines should be considered basic requirements for mitigation
success.

A.1. Whenever possible, choose wetland restoration over creation.

Select sites where wetlands previously existed or where nearby wetlands still exist. Restoration
of wetlands has been observed to be more feasible and sustainable than creation of wetlands.
In restored sites the proper substrate may be present, seed sources may be on-site or nearby,
and the appropriate hydrological conditions may exist or may be more easily restored.

The U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA)
Mitigation Memorandum of Agreement states that, “because the likelihood of success is
greater and the impacts to potentially valuable uplands are reduced, restoration should be the
first option considered” (Fed. Regist. 60(Nov. 28):58605). The Florida Department of
Environmental Regulation (FDER 1991a) recommends an emphasis on restoration first, then

2
enhancement, and, finally, creation as a last resort. Morgan and Roberts (1999) recommend
encouraging the use of more restoration and less creation.

The applicant proposes the type of mitigation. However, the Corps and other agencies will evaluate
proposals based on the ease of completion and the likelihood of success. Therefore, pure wetland
creation will be evaluated using very stringent criteria before being approved for use as compensatory
mitigation for project impacts. Some projects may include creation as part of an overall mitigation
effort that involves restoration, enhancement, and/or preservation (e.g., as in a proposed mitigation
bank). In these cases, evaluation will be based on the entire proposal and its location in the watershed.

A.2. Avoid over-engineered structures in the wetland's design

Design the system for minimal maintenance. Set initial conditions and let the system develop.
Natural systems should be planned to accommodate biological systems. The system of plants,
animals, microbes, substrate, and water flows should be developed for self-maintenance and
self-design. Whenever possible, avoid manipulating wetland processes using approaches that
require continual maintenance. Avoid hydraulic control structures and other engineered
structures that are vulnerable to chronic failure and require maintenance and replacement. If
necessary to design in structures, such as to prevent erosion until the wetland has developed
soil stability, do so using natural features, such as large woody debris. Be aware that more
specific habitat designs and planting will be required where rare and endangered species are
among the specific restoration targets.

Whenever feasible, use natural recruitment sources for more resilient vegetation establishment.
Some systems, especially estuarine wetlands, are rapidly colonized, and natural recruitment is
often equivalent or superior to plantings (Dawe et al. 2000). Try to take advantage of native
seed banks, and use soil and plant material salvage whenever possible. Consider planting
mature plants as supplemental rather than required, with the decision depending on early
results from natural recruitment and invasive species occurrence. Evaluate on-site and nearby
seed banks to ascertain their viability and response to hydrological conditions. When plant
introduction is necessary to promote soil stability and prevent invasive species, the vegetation
selected must be appropriate to the site rather than forced to fit external pressures for an
ancillary purpose (e.g., preferred wildlife food source or habitat).

The use of over-engineered structures and maintenance intensive plans for mitigation is not
recommended and will be evaluated using very stringent criteria. If these types of plans are ultimately
approved, they must include a comprehensive remedial plan and financial assurances [note that all
mitigation projects should have remedial plans and financial assurances], along with a non-wasting
endowment to insure that proper maintenance occurs.

It should also be noted that aggressive soil and planting plans using introduced plants and soil from
outside sources must be closely monitored to prevent invasive plant takeovers and monotypic plant
communities. Such failures can be minimized by undertaking both short-term and long-term
monitoring, and having contingency plans in place.

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A. 3. Restore or develop naturally variable hydrological conditions.

Promote naturally variable hydrology, with emphasis on enabling fluctuations in water flow
and level, and duration and frequency of change, representative of other comparable wetlands
in the same landscape setting. Preferably, natural hydrology should be allowed to become
reestablished rather than finessed through active engineering devices to mimic a natural
hydroperiod. When restoration is not an option, favor the use of passive devices that have a
higher likelihood to sustain the desired hydroperiod over long term. Try to avoid designing a
system dependent on water-control structures or other artificial infrastructure that must be
maintained in perpetuity in order for wetland hydrology to meet the specified design. In
situations where direct (in-kind) replacement is desired, candidate mitigation sites should have
the same basic hydrological attributes as the impacted site.

Hydrology should be inspected during flood seasons and heavy rains, and the annual and
extreme-event flooding histories of the site should be reviewed as closely as possible. For
larger mitigation projects, a detailed hydrological study of the site should be undertaken,
including a determination of the potential interaction of groundwater with the proposed
wetland. Without flooding or saturated soils, for at least part of the growing season, a wetland
will not develop. Similarly, a site that is too wet will not support the desired biodiversity. The
tidal cycle and stages are important to the hydrology of coastal wetlands.

Natural hydrology is the most important factor in the development of successful mitigation. Wetlands
and other waters are very dynamic, and dependent on natural seasonal and yearly variations that are
unlikely to be sustainable in a controlled hydrologic environment. Artificial structures and mechanisms
should be used only temporarily. Complex engineering and solely artificial mechanisms to maintain
water flow normally will not be acceptable in a mitigation proposal. In those sites where an artificial
water source (irrigation) has been used to attempt to simulate natural hydrology there are several
problems that lead to reduced likelihood of success. First, artificial irrigation does not provide the
dynamic and variable nature of water flow normally found in wetlands or riparian systems. Second, the
lack of seasonal flows limits the transport of organic matter into and out of the wetland or riparian
system. Without any inflow, the net result of artificial irrigation is transport of organic material out of
the system. Third, depending on the timing, the use of flood or sprinkler systems on newly created or
restoration sites often promotes the germination and growth of exotic plant species.

Note that this changes the Corps’ past policy of accepting artificial irrigation as the sole source of
hydrology for mitigation projects. If permitted at all, these projects will require substantial financial
assurances and a higher mitigation ratio to offset their risk of failure. Applicants must weigh the
potential investment costs of acquiring land suitable for restoration versus creation projects in upland
environments that will likely involve higher long-term costs and greater risks of mitigation site failure.

The Corps may approve exceptions dealing with hydrologic manipulations, on a case-by-case basis in
highly unusual circumstances. It should be noted, however, that even minor engineering or hydraulic
manipulation requiring long-term maintenance will only be approved after the applicant posts a non-
wasting endowment, performance bond, or other financial assurance.

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A.4. Consider complications associated with creation or restoration in seriously degraded or
disturbed sites

A seriously degraded wetland, surrounded by an extensively developed landscape, may
achieve its maximal function only as an impaired system that requires active management to
support natural processes and native species (NRC 1992). It should be recognized, however,
that the functional performance of some degraded sites may be optimized by mitigation, and
these considerations should be included if the goal of the mitigation is water- or sediment-
quality improvement, promotion of rare or endangered species, or other objectives best served
by locating a wetland in a disturbed landscape position. Disturbance that is intense,
unnatural, or rare can promote extensive invasion by exotic species or at least delay the
natural rates of redevelopment. Reintroducing natural hydrology with minimal excavation of
soils often promotes alternative pathways of wetland development. It is often advantageous to
preserve the integrity of native soils and to avoid deep grading of substrates that may destroy
natural belowground processes and facilitate exotic species colonization (Zedler 1996).

When considering restoration options it is necessary to determine the spatial and temporal scale of the
damage: is the damage limited to the water body itself, or is it a predominant characteristic of the
watershed or the surrounding landscape? On-site damage may be restorable, whereas regional-scale
damage may be more difficult, or impossible, to reverse or obtain historic conditions. Alternate goals
may be necessary in order to determine specific goals of the restoration project. Those desired wetland
mitigation goals will depend on the resources needed, the level of degradation and realistic mitigation
targets as reflected by the watershed and surrounding landscape. This issue points to the importance of
evaluating mitigation plans from a broader watershed perspective.

A.5. Conduct early monitoring as part of adaptive management

Develop a thorough monitoring plan as part of an adaptive management program that provides
early indication of potential problems and direction for correction actions. The monitoring of
wetland structure, processes, and function from the onset of wetland restoration or creation
can indicate potential problems. Process monitoring (e.g., water-level fluctuations, sediment
accretion and erosion, plant flowering, and bird nesting) is particularly important because it
will likely identify the source of a problem and how it can be remedied. Monitoring and control
of nonindigenous species should be a part of any effective adaptive management program.
Assessment of wetland performance must be integrated with adaptive management. Both
require understanding the processes that drive the structure and characteristics of a developing
wetland. Simply documenting the structure (vegetation, sediments, fauna, and nutrients) will
not provide the knowledge and guidance required to make adaptive “corrections” when
adverse conditions are discovered. Although wetland development may take years to decades,
process-based monitoring might provide more sensitive early indicators of whether a
mitigation site is proceeding along an appropriate trajectory.

There are many factors that may positively or negatively influence aquatic resources and the functions
they provide, such as urbanization, farming or grazing. Wetlands and other aquatic resources are often
subject to a wide range and frequency of events such as floods, fires and ice storms. As with all natural
systems, some things are beyond control. Well-crafted mitigation plans, however, recognize the
likelihood of these events and attempt to plan for them, primarily through monitoring and adaptive

5
management. In addition, it is important to realize the mobile nature of wetlands and streams. They
change over time and over the landscape in response to internal and external forces.

Monitoring and adaptive management should be used to evaluate and adjust maintenance (e.g.,
predator control, irrigation), and design remedial actions. Adaptive management should consider
changes in ecological patterns and processes, including biodiversity of the mitigation project as it
evolves or goes through successional stages. Trends in the surrounding area must also be taken into
account (i.e., landscape/watershed context). Being proactive helps ensure the ultimate success of the
mitigation, and improvement of the greater landscape. One proactive methodology is incorporation of
experimentation into the mitigation plan when possible, such as using experimental plots within a
mitigation site with different controls, replication, different treatments, inputs, etc., to determine if
specific mitigation efforts are meeting the desired goals.

B. Mitigation Site Selection

The selection of an appropriate site to construct a mitigation project is one of the most important, yet
often under-evaluated, aspects of mitigation planning. In many instances, the choice of the mitigation
site has been completed by the applicant based solely on economic considerations with minimal
concern for the underlying physical and ecological characteristics of the site. While economic factors
are important in determining the practicability of site selection, current technology and the following
NRC guidelines should also factor into the selection of a mitigation site.

B.1. Consider the hydrogeomorphic and ecological landscape and climate

Whenever possible, locate the mitigation site in a setting of comparable landscape position and
hydrogeomorphic class. Do not generate atypical “hydrogeomorphic hybrids”; instead,
duplicate the features of reference wetlands or enhance connectivity with natural upland
landscape elements (Gwin et al. 1999).

Regulatory agency personnel should provide a landscape setting characterization of both the
wetland to be developed and, using comparable descriptors, the proposed mitigation site.
Consider conducting a cumulative impact analysis at the landscape level based on templates
for wetland development (Bedford 1999). Landscapes have natural patterns that maximize the
value and function of individual habitats. For example, isolated wetlands function in ways that
are quite different from wetlands adjacent to rivers. A forested wetland island, created in an
otherwise grassy or agricultural landscape, will support species that are different from those in
a forested wetland in a large forest tract. For wildlife and fisheries enhancement, determine if
the wetland site is along ecological corridors such as migratory flyways or spawning runs.
Constraints also include landscape factors. Shoreline and coastal wetlands adjacent to heavy
wave action have historically high erosion rates or highly erodible soils, and often-heavy boat
wakes. Placement of wetlands in these locations may require shoreline armoring and other
protective engineered structures that are contrary to the mitigation goals and at cross-purposes
to the desired functions

Even though catastrophic events cannot be prevented, a fundamental factor in mitigation plan
design should be how well the site will respond to natural disturbances that are likely to occur.

6
Floods, droughts, muskrats, geese, and storms are expected natural disturbances and should be
accommodated in mitigation designs rather than feared. Natural ecosystems generally recover
rapidly from natural disturbances to which they are adapted. The design should aim to restore
a series of natural processes at the mitigation sites to ensure that resilience will have been
achieved.

Watershed management requires thinking in terms of multiple spatial scales: the specific wetland or
stream itself, the watershed that influences the wetland/stream, and the greater landscape. The
landscape in which a wetland or water exists, defines its hydrogeologic setting. The hydrogeologic
setting in turn controls surface and sub-surface flows of water, while a variety of hydrogeologic
settings results in biological and functional diversity of aquatic resources.

There are three aspects of watershed management that the applicant must address in a mitigation plan:
hydrogeomorphic considerations, the ecological landscape, and climate. It should be noted that the
overall goal of compensatory mitigation is to replace the functions being lost (functional equivalency)
due to a permitted Section 404 activity. By evaluating the hydrogeomorphic setting, ecological
landscape and climate, one can determine which attributes can be manipulated (i.e. hydrology,
topography, soil, vegetation or fauna) to restore, create or enhance viable aquatic functions.

Hydrogeomorphic considerations refers to the source of water and the geomorphic setting of the area.
For example, a riverine wetland receives water from upstream sources in a linear manner, whereas
vernal pools exist as relatively closed depressions underlain by an impermeable layer that allows
rainfall runoff from a small watershed to fill the pool during specific times of year. Applicants should
strive to replicate the hydrogeomorphic regime of the impacted water to increase the potential that the
mitigation site mimics the functions lost. Only as a last resort, should applicants prepare plans for
constructing wetlands using artificial water sources or placing wetlands into non-appropriate areas of
the landscape. In such cases, there should be a contingency plan to prepare for unanticipated events or
failures.

Ecological landscape describes the location and setting of the wetland/water in the surrounding
landscape. For example, attempting to place mitigation in a dissimilar ecological complex than that of
the impacted water is expected to result in a wetland/water unlikely to replicate the functions of the
wetland/water that was lost. In all cases, the applicant should evaluate the historical ecological
landscape of the mitigation site; for example, if there had been large areas of forested wetland in an
agricultural area, then replacement of a forested wetland may be appropriate given other factors that
should be considered. In most cases, applicants should plan for a mitigation area that fits best within
the ecological landscape of the watershed or region of the mitigation site. Applicants should also
consider constructing mitigation sites with more than one type of wetland/water regime, if appropriate,
to provide for landscape diversity.

Climate also affects mitigation and is clearly beyond the control of the applicant. Therefore, the
mitigation site should be sited in an area supported by the normal rainfall, subsurface and/or
groundwater in the region. Climate considerations also can impact other hydrologic issues, sediment
transport factors and other factors affecting attainment of desired functions. While climate cannot be
manipulated, applicants need to account for it in mitigation plans, including local and regional
variability and extremes.

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B. 2. Adopt a dynamic landscape perspective

Consider both current and future watershed hydrology and wetland location. Take into account
surrounding land use and future plans for the land. Select sites that are, and will continue to
be, resistant to disturbance from the surrounding landscape, such as preserving large buffers
and connectivity to other wetlands. Build on existing wetland and upland systems. If possible,
locate the mitigation site to take advantage of refuges, buffers, green spaces, and other
preserved elements of the landscape. Design a system that utilizes natural processes and
energies, such as the potential energy of streams as natural subsidies to the system. Flooding
rivers and tides transport great quantities of water, nutrients, and organic matter in relatively
short time periods, subsidizing the wetlands open to these flows as well as the adjacent rivers,
lakes, and estuaries.

Applicants should consider both current and expected future hydrology (including effects of any
proposed manipulations), sediment transport, locations of water resources, and overall watershed
functional goals before choosing a mitigation site. This is extremely critical in watersheds that are
rapidly urbanizing; changing infiltration rates can modify runoff profiles substantially, with associated
changes in sediment transport, flooding frequency, and water quality. More importantly, this factor
encourages applicants to plan for long-term survival by placing mitigation in areas that will remain as
open space and not be severely impacted by clearly predictable development. Consideration of the
landscape perspective requires evaluation of buffers and connectivity (both hydrologic- and habitat-
related). Buffers are particularly important to insure that changing conditions are ameliorated,
especially in watersheds that have been, or are in the process of being, heavily developed. In addition,
because wetlands are so dynamic, adequate buffers and open space upland areas are vital to allowing
for wetlands to “breath” (expand and/or decrease in size and function) and migrate within the
landscape, particularly in watersheds under natural and/or man-made pressures.

B.3. Pay attention to subsurface conditions, including soil and sediment geochemistry and
physics, groundwater quantity and quality, and infaunal communities.

Inspect and characterize the soils in some detail to determine their permeability, texture, and
stratigraphy. Highly permeable soils are not likely to support a wetland unless water inflow
rates or water tables are high. Characterize the general chemical structure and variability of
soils, surface water, groundwater, and tides. Even if the wetland is being created or restored
primarily for wildlife enhancement, chemicals in the soil and water may be significant, either
for wetland productivity or bioaccumulation of toxic materials. At a minimum, these should
include chemical attributes that control critical geochemical or biological processes, such as
pH, redox, nutrients (nitrogen and phosphorus species), organic content and suspended matter.

Knowledge of the physical and chemical properties of the soil and water at the mitigation site is also
critical to choice of location. For example, to mitigate for a saline wetland, without knowing the
properties of the soil and water sources at the mitigation site, it is unlikely that such a wetland is
restorable or creatable. Certain plants are capable of tolerating some chemicals and actually thrive in
those environments, while others plants have low tolerances and quickly diminish when subjected to
water containing certain chemicals, promoting monotypic plant communities. Planning for outside
influences that may negatively affect the mitigation project can make a big difference as to the success
of the mitigation efforts and meeting watershed objectives.

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B.4 Pay particular attention to appropriate planting elevation, depth, soil type, and seasonal
timing

When the introduction of species is necessary, select appropriate genotypes. Genetic
differences within species can affect wetland restoration outcomes, as found by Seliskar (1995),
who planted cordgrass (Spartina alterniflora) from Georgia, Delaware, and Massachusetts
into a tidal wetland restoration site in Delaware. Different genotypes displayed differences in
stem density, stem height, belowground biomass, rooting depth, decomposition rate, and
carbohydrate allocation. Beneath the plantings, there were differences in edaphic chlorophyll
and invertebrates.

Many sites are deemed compliant once the vegetation community becomes established. If a site
is still being irrigated or recently stopped being irrigated, the vegetation might not survive. In
other cases, plants that are dependent on surface-water input might not have developed deep
root systems. When the surface-water input is stopped, the plants decline and eventually die,
leaving the mitigation site in poor condition after the Corps has certified the project as
compliant.

A successful mitigation plan needs to consider soil type and source, base elevation and water depth,
plant adaptability and tolerances, and the timing of water input. When possible: a) use local plant stock
already genetically adapted to the local environment; b) use stock known to be generally free from
invasive or non-native species; c) use soil banks predetermined to have desirable seed sources; d)
choose soil with desirable characteristics (e.g., high clay composition and low silt and sand

composition for compaction purposes); e) determine \final bottom elevations to insure that targeted
water regimes are met and the planned plant community can tolerate the water depth, frequency of
inundation and quality of water sources.

It is particularly helpful to examine reference wetlands and/or waters near the mitigation area, in order
to identify typical characteristics of sustainable waters in a particular watershed or region. This allows
one to determine the likelihood of certain attributes developing in a proposed mitigation site. It should
be emphasized that wetland restoration is much more likely to achieve desired results than wetland
creation, as evidence of a previously existing wetland or other aquatic resource is a strong indicator of
what will return, given the proper circumstances Historical data for a particular site, if available, can
also help establish management goals and monitoring objectives. Creating wetlands from uplands has
proven to be difficult and often requires extensive maintenance.

B.5. Provide appropriately heterogeneous topography

The need to promote specific hydroperiods to support specific wetland plants and animals
means that appropriate elevations and topographic variations must be present in restoration
and creation sites. Slight differences in topography (e.g., micro- and meso-scale variations
and presence and absence of drainage connections) can alter the timing, frequency, amplitude,
and duration of inundation. In the case of some less-studied, restored wetland types, there is
little scientific or technical information on natural microtopography (e.g., what causes strings

9
and flarks in patterned fens or how hummocks in fens control local nutrient dynamics and
species assemblages and subsurface hydrology are poorly known). In all cases, but especially
those with minimal scientific and technical background, the proposed development wetland or
appropriate example(s) of the target wetland type should provide a model template for
incorporating microtopography.

Plan for elevations that are appropriate to plant and animal communities that are reflected in
adjacent or close-by natural systems. In tidal systems, be aware of local variations in tidal
flooding regime (e.g., due to freshwater flow and local controls on circulation) that might
affect flooding duration and frequency.

While manipulations of natural water supply may not be possible or desirable, changes in topography
are possible and should be incorporated in the design of a restored or created wetland/water when
needed. Varying the depths of the substrate of the mitigation area ensures a heterogeneous topography,
decreasing the likelihood of homogenous plant communities. Rather than plan on one water level or
one elevation of the substrate, in hopes of establishing a specific plant community, it is best to vary the
depth of the bottom stratum. This will increase the likelihood of success for a more diverse targeted
plant community and desired functions.