Volume 24, Number 11 ● November 16, 2016
Flagging Wetlands: A Permit Requirement to Avoid Unintended Impacts
When a proposed development project has wetlands and streams, state and federal laws require a permit for any impacts. There is a laundry list of requirements that must be addressed after WSSI’s team of regulatory specialists procure a permit from the U.S. Army Corps of Engineers and the Virginia Department of Environmental Quality’s Virginia Water Protection (VWP) Permit Program for impacts to selected wetlands and other Waters of the U.S. (with compensatory mitigation as needed) on behalf of our clients. These requirements range from construction notifications and completing regular construction monitoring reports to compensatory mitigation and counter-sinking culverts. An often overlooked requirement of all Individual and General VWP permits is the need to flag all non-impacted surface waters within 50 feet of permitted activities and within the project or right-of-way limits. These areas “shall be clearly flagged or marked for the life of the construction activity at that location…”¹
Wetlands, streams, and preservation areas need to be flagged PRIOR to construction starting. DEQ takes this requirement seriously, and has been much more vigilant about enforcing this permit condition over the past few months. It is often the first thing they look for during site visits.
Once the limits of clearing (LOC) have been staked out and flagged, construction crews may think they can clear up to the “white line.” However, firms are taking huge risks if they don’t have the wetlands flagged simultaneously. A surveyor marking the LOC may not be thinking about wetlands and might tie the white flagging to the nearest tree branch, or might cut a corner and unwittingly cross into a preservation area. Without realizing it, the clearing contractor can create an impact that will be a headache for the developer and himself. This happens a lot. Flagging wetlands and other preservation areas before clearing is a simple way to avoid such headaches.
Also keep in mind that after a VWP permit has been issued, engineers may change the site plans and inadvertently make adjustments to the wetland impact and preservation areas. Those changes require a permit modification from DEQ and/or the Corps of Engineers, however that step is occasionally missed. Having the non-permitted wetlands flagged in advance will help prevent a contractor who is following the new site plans from destroying a wetland and causing the developer to pay for an after-the-fact permit modification, penalties from the regulatory agencies, and additional mitigation costs. Those little pink flags can literally save tens of thousands of dollars! So make sure wetlands and preservation areas are flagged, and ensure those flags stay up until the project is fully completed.
1. 9VAC25-690-100. VWP General Permit., Part I, B, 10: “All nonimpacted surface waters and compensatory mitigation areas within 50 feet of authorized activities and within the project or right-of-way limits shall be clearly flagged or marked for the life of the construction activity at that location to preclude unauthorized disturbances to these surface waters and compensatory mitigation areas during construction. The permittee shall notify contractors that no activities are to occur in these marked surface waters.”