D.C. DOEE Notice of Emergency and Proposed Rulemaking
DC DOEE’s emergency rulemaking addresses wetlands and streams that may no longer be under federal protection.
On October 7, 2020, the Department of Energy and the Environment (DOEE) adopted an emergency rulemaking in order to add two new chapters (Chapter 25: Critical Area – General Rules, and Chapter 26: Critical Area – Wetlands and Streams) to Title 21 of the District of Columbia Municipal Regulations (DCMR). Wetland Studies and Solutions, Inc. (WSSI) has reviewed these new wetland and stream regulations. This emergency rulemaking is DOEE’s response to protecting wetland and streams within the District that may no longer be protected by federal law, as well as to formalize draft rules that they have been operating under in practice.
Timing
- This emergency rulemaking went into effect on October 7, 2020 and will remain in effect for 120 days from the date of adopting or until publication of a Notice of Final Rulemaking in the D.C. Registry.
- A 60-day public comment period began on October 7, 2020.
- Comments should be labeled “Review of the Critical Area – Wetlands and Streams Regulations” and filed with the Department of Energy and Environment, Regulatory Review Division, 1200 First Street NE, 5th Floor, Washington, DC 20002, Attention: Jennifer Dietzen, or by e-mail.
- Any proposed project in the District with wetland or stream impacts prior to the October 7, 2020 date are not subject to the new wetland and stream regulations.
Chapter 25 – Critical Area – General Rules
- Applies to any activity within a critical area. Critical areas have been defined as any wetland or stream. Click here for more information about critical area mapping.
- Details inspection and violation protocols.
- Provide a preconstruction notification at least 7 business days before the start of an activity within wetlands or streams.
Chapter 26 – Critical Area – Wetlands and Streams
In general, this new rulemaking aims to provide more clarity and transparency with DOEE and is not substantially different than what was previously in effect. The focus of the rules is outlining more clearly their fee schedule, mitigation process, and avoidance/ minimization requirements. Below are the main takeaways from the new rulemaking:
- Activities exempt from these new DOEE permitting regulations include: invasive species removal, activities that disturb less than 50 square feet with no impact to waters of the United States, and activities that have previously received a Section 404 permit by the U.S. Army Corps of Engineers and a District Water Quality Certification prior to October 7, 2020.
- Activities exempt from any District mitigation requirements include submerged aquatic vegetation (SAV) restoration/ enhancement, stream and wetland restoration/ enhancement/ creation, and installation of temporary floating recreational docks.
- Outlines the application requirements and submittal procedure.
- Introduces a fee schedule for new applications after October 7, 2020.
- Clearly outlines the avoidance/ minimization requirements and compensatory mitigation requirements. Including a new compensatory mitigation ratio table based on Cowardin type impacted.
- Allows compensatory mitigation to be satisfied through the payment into the District Wetland and Stream Mitigation Trust Fund for certain activities instead of always having to go through the permittee responsible mitigation (PRM) process.
- Requires a public notice for any permit or certification before issuing the permit.
- Permits or certifications are valid for 5 years.
Previous drafts of the regulations included a 25-foot buffer on aquatic resources that also required mitigation if impacts took place within that buffer. The removal of this provision more closely aligns the District with neighboring jurisdictions.
Contact Us
If you have questions about these proposed actions, please contact Mark Headly, Robbie Clark, or Ben Rosner in our Gainesville office.