Chapter 1.3
Sensitive Lands and Wildlife Habitat

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Wetland Habitat Impact Analysis

INTRODUCTION

An Impact Analysis (IA) provides information to a local government on the effects a development will have.[1] IAs can provide developers, local officials, and the community with a host of information concerning the impacts of a development.[2] This particular ordinance requires an IA focused on providing information relative to what impacts a development will have on wetland habitats in the area.[3] An IA can be required to be performed at a variety of points, including prior to any zoning variance or amendment approvals or before the permitting process.[4] The ordinances discussed below ensure that developers bear the cost for an IA because they are most familiar with the project, are making the request, and are able to calculate costs associated with building and financing such a project.[5]

A key consideration for any IA is what information should be included in the IA. Generally, an IA concerning wetlands habitat includes “the process of identifying, predicting, evaluating and mitigating” the effects on wetland habitats “prior to any major decisions being taken and commitments made.”[6] A proper wetland habitat IA should include, but is not limited to, the extent and nature of the impact to habitats both on- and off-site, short and long-term effects, opportunities to mitigate adverse wetland impacts, and a determination if there are any other significant concerns that will need to be addressed.[7] In addition to the content covered by the IA, any community considering an IA ordinance should consider whether the ordinance should address:

• Minimum qualifications for the person performing the IA;[8]
• The criteria for approval of an IA;[9]
• Who should review and approve the IA and their qualifications;[10]
• The process for appeal of project denial based on an IA;[11] and
• Whether the reviewer should provide remedies for a project denied based on an IA.[12]

EFFECTS

Since the colonization of the United States, one-third to one-half of all wetlands have been lost.[13] Some states have lost over 90% of their pre-colonization wetlands.[14] More recently, 2004-2009, wetland area has continued to decline by an estimated 62,500 acres, nationally.[15] The IA should be substantive, rather than merely procedural, focusing on the effects the development will have on wetland habitats.[16] The upfront cost of a wetland habitat IA will allow all involved to determine if (a) the development’s impact is too great to go forward based on established criteria set forth in the regulations, (b) if an otherwise unsuitable wetland habitat risk can still go forward with proper environmental mitigation measures,[17] or (c) if a development exaction should be imposed to help offset the impacts while allowing the project to go forward.[18] An impact fee is a “one-time charge[] assessed by a local government against a new development project to help pay for new or expanded public facilities that will directly address the increased demand created by that development.”[19]

A wetland habitat IA can help improve planning and decision-making, create a better understanding of wetland habitats in order to create effective policy regarding such habitats, and create better planning, alternatives, prevention, and management when handing development in wetland habitats.[20] A wetland habitat IA may also be beneficial to developers as it may allay fears from the public due to a lack of information, allow the developers to adjust their plans and minimize public objections, and identify alternative options for the developer prior to a large investment of capital.[21]

EXAMPLES

Blaine County, ID

In order to secure the benefits of wetlands, Blaine County created Wetlands Overlay Districts (WE) in its zoning code. The WE does not allow for disturbances of wetlands[22] and requires twenty-five feet set back from designated wetlands.[23] “The purpose of this section is to permit the type of activities that can enhance wetlands function and not allow uses that may impede wetlands function.”[24] However, certain clearly defined uses and approved activities may still be done on wetlands.[25] The County will allow for certain agricultural use, the planting of native riparian vegetation, maintenance of “yardscape”, and other activities approved by a County permit.[26]

The County Code also gives a clear definition of what constitutes wetlands: Those areas of Blaine County that are inundated or saturated by ground or surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”[27] Clearly defining what constitutes a protected wetland helps developers understand which properties are developable and worth investing capital in.

To view the provisions, see Blaine County, ID, County Code §§ 9-19-1 to 9-19-6 (1977).

Bonita Springs, FL

In addition to other requirements, Bonita Springs requires three IAs on the environment, fiscal and economic, and social aspects of rural and outer island developments requesting density above the standard range.[28] The IAs must include the methodologies, models, assumptions and standards used and must be done by a professional biologist, economist, engineer, landscape architect, market analyst, soil scientist, or planner.[29]

One of the items that must be included on the environmental IA is a wetlands survey, if applicable, which states the number of acres of “wetlands on the site, what alterations or disturbances to wetlands are proposed, and what wetlands will be preserved in their natural or existing state.”[30] In addition, the wastewater and drainage analysis from the development must be outlined.[31] This study must include a survey of the wildlife that are at the development site, including “aquatic life, which nest, feed, reside on or migrate” to the site.[32] Once identified, the IA must outline measures that will be taken to protect the wildlife and their habitats.[33] Flora, both major and minor, must also be identified. Once identified, the ecological function, health, and condition of each plant community must be part of the analysis.[34] Protection measures are required for any rare or endangered vegetation.[35]

To view the provision, see Bonita Springs, FL, Code of Ordinances Sec. 4-348 (2011).

ADDITIONAL EXAMPLES

Lee County, FL, Land Development Code § 12-102, 12-110 (a) (21) (b) (2008) (in gaining approval for mining activities, Lee County requires an environmental assessment report which must include a scientifically based evaluation for the preservation and restoration of wetlands).

Lyons, CO, Municipal Code § 16-10-40 (2014) (ordinance requires IA for developers to identify the net effect of the activity on the wetlands and to describe the types of species, source of water creating the wetlands, and net effects of the project on the wetlands).

Fulton County, GA, Code of Ordinances § 28.4.3.1 (2013) (requiring an environmental site analysis (ESA) for all rezoning and permit petitions to determine if proposed use may be considered environmentally adverse. It must include, specifically, the presence or absence of wetlands and if the project encroach or adversely affect the wetlands).

ADDITIONAL RESOURCES

U.S. Army Corps of Engineers, Environmental Impact Statement Appendix L: Cumulative Impact Analysis: Savannah Harbor Expansion Project, Jan. 2012, https://perma.cc/24M7-NDTH.

Steven Danzer, What is an Impact Analysis?, Steven Danzer, PhD & Associates LLC Wetlands & Environmental Consulting, May 26, 2015, https://perma.cc/3S3E-MVRP.

James T. Maughan, Environmental Impact Analysis: Process and Methods (2014).

U.S. Army Corps of Engineers, Institute for Water Resources Water Resources Support Center, National Wetland Mitigation Banking Study: Technical and Procedural Support to Mitigation Banking Guidance (1995), https://perma.cc/8ZVL-4QQ8.

Envtl. Prot. Agency, Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (1995), https://perma.cc/LA36-72UZ.