Sizing Up the Impacts: Revisiting Pennsylvania’s Aquatic Resource Compensation Protocol

Sizing Up the Impacts: Revisiting Pennsylvania’s Aquatic Resource Compensation Protocol

Land developers and engineers, have you ever worked with a site plan where an impact to a wetland or waterways was unavoidable? And if you were faced with such impacts, would you know what to do? Those that have dealt with this situation can attest to one thing: resource impacts bring additional project costs and delays. Wetlands and waterways permitting, in general, can cast a cloud of uncertainty over the entire planning and approvals process. And while avoidance is always the best option, sometimes it’s not an option at all.   Recognizing the need for better understanding and an improved overall permitting process, the Pennsylvania Department of Environmental Protection (DEP) has been encouraging the more widespread use of draft guidance it first published in 2014.

The Draft Pennsylvania Function-Based Aquatic Resource Compensation Protocol, more concisely referred to as the draft ARC Protocol, is DEP’s attempt to apply a set of the tools that were developed in 2008 by the two federal agencies with jurisdiction over wetlands and waterways. At that time, the US Army Corps of Engineers (USACE) and the US Environmental Protection Agency (USEPA) built a framework for standardizing the process for compensatory mitigation for projects which impact federally-regulated wetlands and watercourses.

The concept of compensatory mitigation has its regulatory origins in USEPA’s landmark 1972 Clean Water Act, and a full descriptive history of mitigation programs, from federal governance all the way down to its administration at the state level, is well beyond the scope of this short article. But it’s important to acknowledge Section 404 of that Act, which governs the placement of dredged materials or fill into Waters of the United States. It’s this Section 404 that underpins the regulatory basis for waterways permitting as it most often applies to land development.

In Pennsylvania, DEP’s Chapter 105 Dam Safety and Waterway Management regulations govern water obstructions and encroachments located in aquatic resources, and provide permitting programs for projects which alter or otherwise affect wetlands, watercourses, or floodways.

So when a project in Pennsylvania will result in unavoidable impacts to aquatic habitats, permitting of these impacts is administered jointly by the Pennsylvania DEP and the USACE through the Pennsylvania DEP Water Obstruction and Encroachment Permit and USACE Section 404 Permit Program. This Program – which is in dire need of a name-shortening  – is referred to simply as a ‘Joint Permit’. The Joint Permit Application, (or ‘JPA’) process involves extensive studies of the existing aquatic resources of the site, descriptions of the impacts on those resources proposed as part of the planned development, and the development of compensatory mitigation designs to adequately offset those impacts.

The process was initially one that applied a basic multiplier to the acreage of impacted wetlands (or linear feet of impacted watercourses). Developers merely had to ensure that adequate space was present on the site to create the compensatory projects, and if not, provide for an off-site project, preferably within the same watershed so that the mitigative measures would benefit the same downstream system.

More recently, however, the program has placed emphasis on the concepts developed jointly by USACE and USEPA in its 2008 Final Compensatory Mitigation Rule.  The Rule establishes equivalent standards for aquatic resource compensatory mitigation projects regardless of whether they are conducted by permit applicants through their own on-site or off-site designs, or by using alternative methods that include the use of off-site mitigation banks or the payment of fees that compensate for the losses (commonly known as in-lieu fee programs).

In its 2014 draft ARC Protocol, DEP adopted concepts from the 2008 Mitigation Rule and emphasized a more multi-dimensional evaluation process that required the prospective permittee to first take into account the existing condition of the aquatic resources on site, and the manner and extent to which the areas will be impacted. Underpinning all of this is a detailed study of the ecological function and value of each affected area.

Before the 2014 DEP Protocol, permittees could use a number of function and value assessment methods that included the USACE Wetland Evaluation Technique (WET), or the 14 functional parameters described in DEP’s own Chapter 105 regulations. The 2014 document calls for the use of Level 2 Rapid Assessment Protocols which can be applied to the specific types of aquatic habitats present: wetlands, streams and rivers, or lakes.  For each resource, the permittee must study and assign a graded value to each of several characteristic groupings including hydrology, biogeochemistry, and habitat, and calculate a Condition Index to each resource.  While similar in essence to the types of functional assessments that preceded them, the Level 2 Protocols take the process a step further by applying a mathematical equation that incorporates the following:

1. The area of the proposed impact;
2. The degree of Project Effect on the resource (severe, moderate, limited, or minimal);
3. The Resource Value, determined by its existing ecological function (significant, special, quality, support, or minimal); and,
4. The Condition Index developed for each resource.

The output of the equation is a calculated Compensation Requirement, in acres, for each affected resource.

Thus, the goal of DEP’s ARC Protocol is to streamline and standardize the procedures for determining the specific amount of compensatory mitigation area that must be incorporated into a site design to offset the plan’s impacts to existing resources. Where there is space and appropriate conditions on a tract to do so, most permittees choose to design and build the mitigation areas on-site as part of their plans.  At sites that cannot accommodate any or all of the required mitigation areas, an off-site mitigation area can be designed and built.  However, such off-site designs would require additional land or easement acquisitions, and the siting of such areas can be restrictive; DEP typically requires off-site mitigation areas to be situated within the same sub-watershed as the affected resources.

If neither of the two options are available as part of a project, two additional possibilities remain; the purchase of credits from an existing (and permitted) mitigation bank, or the monetary compensation for the unmitigated resource loss to DEP through its in-lieu fee program, entitled the Pennsylvania Integrated Ecological Services, Capacity Enhancement and Support Program – another overlong name that should could have simply been called ‘pay up’.

Assuming that the project can accommodate an on-site or off-site mitigation area, the 2014 Protocol brings clarity to a process that was often the subject of difficult technical discussions after the submittal of the JPA. But among its most important improvements are the means by which the degraded conditions of an aquatic resource can be considered when determining an appropriate mitigation area.  For example, a wetland within a pristine natural setting, set apart from anthropogenic sources of disturbance, will have a relatively high functional value, its systems well-established to provide support for aquatic and land-based species, to provide treatment of surface water flow and attenuation of flood flow. But by contrast, a narrow strip of wetlands running through a cultivated agricultural field, a golf course, or a closely-mowed residential development will not have a high degree of ecological function due to agricultural chemical runoff, heavy siltation and a lack of species habitat.  So when these areas are to be impacted by a development, it’s important to be able to communicate such conditions so that an appropriate (and reasonable) compensatory plan can be developed.

This article was authored by David S. Coyne, QEP, Principal at Liberty Environmental. For more information on all aspects of aquatic resource evaluations and permitting, please call Dave or Teresa Amitrone, Project Manager at 800.305.6019.