MEMORANDUM OF UNDERSTANDING
THE PROTECTION AND MITIGATION OF
OTHER SURFACE WATERS
1.1 Purpose - The purpose of this Memorandum of Understanding (MOU) is to establish a mutually agreeable interagency process for mitigating or correcting environmental problems associated with the disturbance of wetlands or other surface waters by highway construction. This MOU establishes a system whereby the Wyoming Department of Transportation (WDT) can develop wetland mitigation sites (mitigation banks), to satisfy the requirements of the Corps of Engineers (COE) Section 4.04 permit process, for those projects which impact jurisdictional wetlands, in advance of anticipated wetland losses from highway projects; and to satisfy the requirements of all other signatories regarding those highway projects which impact other wetlands and surface waters. This MOU establishes a process to ensure the early involvement of concerned agencies in addressing wetland, and other surface water, impacts due to WDT projects.
1.2 Authorities - This MOU is established in accordance with the following authorities, among others.
- The Clean Water Act (33 USC 1251 et seq.)
- The Corps of Engineers Regulatory Program (33 CFR 320 et seq.)
- National Environmental Policy Act (NEPA) (42 11SC 4321 et seq.)
- Council on Environmental Quality (CEQ) regulations for the implementation of NEPA (40 CFR 1500-1508)
- Executive Order (EO) 11990, "Protection of Wetlands"
- Department of Transportation (DOT) Order 5660.1A, "Preservation of the Nation's Wetlands". DOT Order 5660.1A requires all federal aid projects comply with E0 11990. DOT Order 5660.1A also requires the WDT to demonstrate there is no practicable alternative to construction in wetlands or other surface waters and all practicable measures to minimize harm have been included in the project.
- Mitigation of Environmental Impacts to Privately Owned Wetlands (23 CFR 777)
- Intermodel Surface Transportation Efficiency Act of 1991 (ISTEA)
- Fish and Wildlife Coordination Act (16 USC 661 et seq.)
- Endangered Species Act (16 USC 1531 et seq.)
- Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army concerning the determination of mitigation under the Clean Water Act Section 404(b)(1) Guidelines
- Wyoming Environmental Quality Act (35-11-101 through 35-11-1428)
1.3 Goal - The goal of this MOU is to establish a process for the protection and mitigation of wetlands and other surface waters.
2.0 MITIGATION BANKS
2.1 Need - In the context of highway planning, design, and construction; avoiding, minimizing, rectifying, or reducing wetland or other surface water impacts is not always feasible, practicable, or likely to lead to more than inconsequential reductions in impacts. As such, the use of previously established, off-site wetlands may be appropriate in these situations to compensate for wetland losses. Such use is consistent with the definition of mitigation provided by 4.0 CFR 1508.20(e). Therefore, the need exists to establish standards, guidelines and procedures for the creation of wetland mitigation banks which can be used to compensate for all unavoidable wetland impacts due to roadway development, operation maintenance activities by the Wyoming Department of Transportation. Such banks will represent a net gain of wetlands to be drawn upon to offset unavoidable wetland impacts. The Wetland Banks will only be utilized to mitigate those wetland impacts caused by WDT activities which are conducted in compliance with the requirements of the Clean Water Act.
2.2 Functions and Values - The COE, or entity approved by the COE, will identify the functions and values of the affected aquatic ecosystem. Where such other entity has identified those functions and values, their findings must be reviewed and approved by the COE prior to their inclusion in a mitigation bank. The latest scientific technology or best professional judgement shall be used to determine wetland, upland and habitat functions and values. The methodology utilized to determine the functions and values of a mitigation bank site shall also be utilized in determining the functions and values of any aquatic ecosystem which will be impacted by a proposed highway project.
2.3 Establishment - The WDT will use its best judgment, in consultation with the Interagency Group, as defined in Section 3.1, to locate and develop individual wetland bank sites. Wetland bank sites should have the physical, chemical and biological character to support wetland development, and be within the same watershed and biotic region where losses are anticipated. The WDT will prepare an initial assessment of a proposed bank site, including plans for development, that will be reviewed by the Interagency Group to determine if the site has potential for use. Based on this review, the COE will notify the WDT if a site and development plan are acceptable for use as a wetland mitigation bank site.
2.4 Monitoring and Maintenance - At the time credits are to be withdrawn from the bank, the WDT shall prepare, and submit for COE approval, a monitoring and maintenance plan for each mitigation bank site. Such plans shall contain both short and long term goals and objectives. The WDT shall attempt to locate a responsible party (e.g.; a Federal or State resource agency, local governmental body, conservation group, or landowner) to maintain each mitigation banking site. In the event a responsible party cannot be located, the WDT shall specify what steps will be taken to maintain the mitigation site and will assume the role of the responsible party.
2.5 Record Keeping - The WDT will establish and maintain records which document the activity of the wetland bank accounts. For activities involving waters of the United States, the COE will be responsible for determining the amount of credits to be added to, or deducted from, a mitigation bank account. For all other wetlands and surface waters, the Interagency Group will be responsible for determining the amount of credits to be added to, or deducted from, a mitigation bank account. At no time, will the wetland credit value of a bank account be allowed to drop below zero. The WDT shall provide the Interagency Group with annual reports of each bank account and an update report immediately following each approved transaction.
3.0 OPERATIONAL GUIDELINES
3.1 Coordination - As early as practical in project development, the WDT will coordinate all project_ proposals with the Interagency Group. The Interagency Group will be composed of, at a minimum, representatives from the following agencies (other agencies may be introduced as appropriate):
- U.S. Army Corps of Engineers
- U.S. Environmental Protection Agency
- U.S. Fish and Wildlife Service
- Federal Highway Administration
- Wyoming Game and Fish Department
- Wyoming Department of Environmental Quality
- Wyoming State Engineer's Office
- Wyoming Department of Transportation
3.2 Evaluation Criteria - Prior to the utilization of an established mitigation bank, the WDT must demonstrate compliance with the mitigation sequence found at 40 CFR 1508.20, and must demonstrate that every practicable opportunity for in-kind and on-site compensatory mitigation has been exhausted, unless it can be demonstrated that compensatory mitigation from the bank will result in a higher quality wetland and environmental gain. For activities involving waters of the United States. the COE will be responsible for determining when compensatory mitigation is appropriate, how much mitigation is necessary, and whether or not a mitigation bank can be utilized to offset project impacts. The Interagency Group will be responsible for determining mitigation for all other wetlands and surface waters.
3.3 Local Procedures - Local procedures for carrying out the provisions of this MOU will be developed by the Interagency Group and approved by the COE. These procedures shall clearly identify the dudes and responsibilities of each signatory of the MOU. The procedures shall specify that the COE is solely responsible for making final permit decisions pursuant to Section 404(a)of the Clean Water Act, including final determinations of compliance with the Corps permit regulations, the Section 404(b)(1) Guidelines, and Section 7(a)(2) of the Endangered Species Act. The procedures shall outline the step-by- step process to be followed by the WDT in the development and coordination of a proposed highway project.
3.4 Modification or Termination - This Memorandum of Understanding may be modified with the approval of all signatories. Modification may be proposed by one or more signatories. Proposals will be submitted to the COE to be circulated to all signatories for a 30-day period of review. Approval of any such proposals will be indicated by written acceptance. A signatory may terminate his participation in this agreement upon written notice to all other signatories.
|U.S. ARMY CORPS OF ENGINEERS||WYOMING DEPARTMENT OF TRANSPORTATION|
|Col. Stewart Bornhoft Date|
| Don Diller Date|
|U.S. ENVIRONMENTAL PROTECTION||WYOMING GAME AND FISH AGENCY|
|Max Dodson, Director Date|
Water Management Division
|Francis Petera Date|
|FEDERAL HIGHWAY ADMINISTRATION||WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY|
|Frederick A. Behrens Date|
Division Administrator Wyoming
|Dennis Hemmer Date|
|U.S. FISH AND WILDLIFE SERVICE||WYOMING STATE ENGINEER'S OFFICE|
|Kemper McMaster Date|
Montana & Wyoming
|Gordon W. Fassett Date|
IMPLEMENTING THE MOU
FOR THE PROTECTION AND MITIGATION OF WETLANDS
AND OTHER SURFACE WATERS
1.1 Purpose - The purpose of these Local Procedures is to establish guidelines and criteria to implement the Memorandum of Understanding (MOU) for mitigating or correcting environmental problems associated with the disturbance of wetlands or other surface waters by Wyoming Department of Transportation (WDT) highway construction. It is also intended to facilitate permit processing and mitigation. It is not intended to contradict existing policies, procedures, and regulations. These Local Procedures apply where a WDT project would fill or otherwise disturb wetlands or other surface waters.
Final decisions on waters of the United States will be made by the U.S. Army Corps of Engineers (COE) and/or U.S. Environmental Protection Agency (EPA). Decisions on all other wetlands and other surface waters will be made jointly by those signatory to the MOU.
1.2 Definitions - Key terms are italicized throughout these Local Procedures and are defined in Table 1.1, Exhibit 1. These definitions are only for the purposes of administering these Local Procedures and are not intended to be rigorously complete or accurate.
1.3 Wetland Banking - The wetlands bank represents a net gain of wetlands to be drawn upon to offset future unavoidable losses caused by highway activities within a particular:
- watershed and
- biotic region.
1.4 Wetland Bank Application Criteria - There are two governing criteria for identifying when a wetlands bank may be considered as practicable for WDT construction, operation and maintenance activities. Wetlands Credit from the wetlands bank may be used only:
- if the mitigation sequence [40 CFR 1508.20 (a) through (c1)1 results in findings that are determined to be impracticable using the wetland evaluation practices of Section 3.3 of these Local Procedures, and
- to mitigate the loss of wetlands which are not considered by a Regulatory Agency or Resource Agency as being unique wetlands.
Unique wetlands will be identified during the early coordination phase of the environmental review process of these Local Procedures, and plans will be made for mitigation through means other than wetlands banking with avoidance being the preferred alternative. In some instances, onsite mitigation as provided by these Local Procedures may be acceptable.
1.5 Intent - The intent of these Local Procedures is threefold.
- Expeditiously resolve the environmental concerns of members of the Interagency Group through application of the procedures and criteria guidelines set forth herein prior to the Design Sub Phase as detailed in the Operations Section of these Local Procedures
- Provide procedures for the timely correction of problems occurring during construction
- Provide for early involvement in a WDT Project by each Regulatory and Resource Agency
1.6 Disputes - It is recognized that disputes over technical practices. findings and administrative procedures may, from time to time, arise. It is anticipated that most disputes will be amicably resolved. In all instances, a consensus will be reached as a minimum. However, it is recognized that any consensus reached is subject to change as a result of an action by a dissenter as set forth below, and by the COE public interest review.
Unresolved disputes will be processed as provided by the disputing agency's regulations. Where a dispute is unresolved and Federal or State regulations or funds are not involved, the WDT may proceed with a project recognizing that it may incur project changes and delays at a later date. However, it is agreed that no wetlands or other surface waters will be impacted prior to the resolution of a dispute or receipt of a COE permit.
1.7 Goal - The goal of the MOU and these Local Procedures is to develop a process for the protection and mitigation of wetlands and other surface waters and to establish wetland mitigation banks which can be used to compensate for all unavoidable wetland impacts due to roadway development, operation and maintenance activities by the WDT. Such banks will represent a net gain of wetlands to be drawn upon to offset unavoidable wetland impacts that cannot be mitigated on site, and that are losses caused by WDT activities which are conducted in compliance with the requirements of the Clean Water Act.
2.0 RESOURCE MITIGATION ALTERNATIVES
2.1 Agency Review Period - Each Regulatory and Resource Agency agrees to provide timely environmental resource input to the WDT for their use in evaluating mitigation alternatives, and to review and comment on the WDT's findings in a timely manner.
2.2 Wetlands and Other Surface Waters - The WDT will routinely address five mitigation alternatives which are, in their order of preference:
- onsite mitigation,
- off site mitigation within the same drainage,
- off site mitigation within the same watershed and biotic region. and
- no mitigation.
Where practicable and desirable, substitute wetlands will also be of the same class as shown in Table 2.1, Exhibit 2. Avoidance will be thoroughly evaluated before other options are considered. These five alternatives will be addressed beginning with the Environmental Sub Phase, recognizing that the process set forth in the Operations Section of these Local Procedures may eliminate some alternatives from consideration in subsequent sub phases. Alternatives other than these five may be addressed where it is mutually agreed by the signatories to the MOU, for which these Local Procedures apply.
The criteria guidelines to be used in evaluating the first four mitigation alternatives as well as any other option that may be proposed are set forth in the following Section.
3.0 MITIGATION CRITERIA GUIDELINES
The criteria guidelines set forth below will be applied during the Operational Phase of these Local Procedures to select mutually acceptable mitigation measures and methods. Other wetlands mitigation measures and methods may be employed. Mitigation methods for other surface waters are too broad to be categorized by these Local Procedures at this time and will be identified on a case by case basis.
3.1 General Guidelines - The disturbance of any wetlands or other surface waters by WDT construction will be in accordance with Federal laws, rules and regulations; and with State laws, rules and regulations, where such State laws, rules or regulations are not inconsistent with Federal requirements; and the conditions of these Local Procedures. Depending on which applies, the WDT construction will also comply with the conditions of:
- COE Nationwide General Permits,
- COE Regional General Permits,
- the requirements set forth in a COE Individual Section 404 Permit, and
- criteria contained in the COE/Federal Highway Administration (FHWA) Memorandum of Agreement (M0A)I.
The Best Management Practices (BMPs) of Exhibit 3 will be routinely applied by the WDT during work in any wetlands or other surface waters. DEQ standards and stipulations for 441 certification will also apply and are listed in Exhibit 4. The features, functions, quality, evaluation criteria and management practices for other surface waters are too broad to be categorized by these Local Procedures at this time and will be identified on a case by case basis.
3.2 Wetland Features, Functions and Quality - Before applying the criteria guidelines in this Sub Section it is necessary, based on the definitions of Exhibit 1, to determine the wetland:
- functions, and
It is agreed that the Wyoming Game and Fish Department (WGFD) or U.S. Fish and Wildlife Service (FWS) habitat evaluation models for determining wetlands features, functions and quality values will be applied by the signatories in arriving at their findings. Each Resource Agency agrees to provide a timely review of the wetlands features, functions and quality values, and any expected changes thereto as proposed by the WDT during the Operational Phase Section (discussed elsewhere in these Local Procedures).
3.3 Wetland Evaluation Practices - A Wetlands Evaluation Method will be used where necessary to assess the importance of wetland functions, and impacts from the highway project. The WGFD Superbog model will be used to evaluate wildlife functional unit values. The FWS HEP models will be used to evaluate functional unit values for habitats that cannot be evaluated by the WGFD's Superbog Model. Other wetlands functions and values will be determined by a separate analysis. The acreages of prospectively impacted wetlands will also be determined. Wetland evaluations will be done on a case by case basis by the Interagency Group. The Interagency Group Leader will serve as the facilitator and will be from the WDT.
When the resource value of the wetlands as estimated by any Regulatory Agency or Resource Agency is compared to the WDT's estimated cost for the various mitigation alternatives and found to be impracticable to the WDT, consideration will be given to either:
- alternate mitigation measures,
- other route or build alternatives,
- terminating the project, and/or
- proceeding with the project as provided by the Disputes Section of these Local Procedures.
3.4 Wetland Criteria - Where it is agreed by the Interagency Group that the effects of an unavoidable disturbance can be mitigated, the intent of any mitigation alternative is to restore the wetland acreage, features. functions and quality as near as practicable to the predisturbance levels. Thus, restoration will be accomplished for the selected mitigation alternative through application of the wetland mitigation methods and measures.
It is recognized that the wetland methods and mitigation measures may indicate substitute or replacement wetlands could be smaller than the disturbed wetlands. In this event, a no net loss of acreage, function and value criterion will apply; i.e., in no instance will substitute or replacement wetlands have either less surface area or a lower expected total functional value than the disturbed wetland.
With onsite mitigation, enhancement of the disturbed wetlands will be provided where it is necessary to offset an expected permanent or long term degradation in the wetland features, functions or quality. Minor temporary losses which occur during and for a short period following construction need not be mitigated. However, temporary short term degradation which occurs during construction will be controlled as described in the Best Management Practices (BMPs) of Exhibit 3, and disturbed sites will be reclaimed according to recommendations from the WGFD and FWS to prevent further degradation and to promote vegetative recovery.
The need for any mitigation alternative, measure or method will be determined on a project basis, and will be based on the functions and quality of the wetland's features, as well as any related findings. In addressing the need for wetland mitigation it is mutually agreed that numerical listings of the features and functions lost or gained due to a proposed highway route or build alternative2 does not normally provide sufficient justification for a decision. It is necessary to estimate the severity of any proposed highway route or build alternative for both the short term and long term degradation on the wetland features, Junctions and quality wherever practicable. Accordingly, each Resource Agency agrees to assist the WDT in assessing the expected long term and short term degradation due to the proposed highway alternatives on the wetland features, functions and quality. This assistance will be provided in a timely manner as set forth in the Operational Phase section of these Local Procedures so as to preclude an unreasonable delay of a highway project. The WDT will provide target dates for this assistance to all concerned parties as derived from WDT design and construction schedules. The WDT will allow a minimum of 30 calendar days for signatories to respond to this request for assistance.
The general wetland criteria guidelines to be used by the Interagency Group in selecting acceptable wetland mitigation alternatives, measures and methods will be their ability to insure the wetlands:
- perpetuate, with a reasonable probability of success, the existing or proposed features, functions, and quality during the expected natural lifespan of the wetland,
- comply with interstate water compacts, decrees, and related constraints,
- agree with all rules and regulations pertaining to Wyoming State water law,
- comply with the programs, plans, rules, regulations, and statutes of other local, state and federal agencies,
- satisfy public safety, public interest, and
- meet the requirements of the Federal Emergency Management Agency (FEMA).
3.5 Wetland Banking Criteria - Wherever practicable mitigation will occur at the time a wetland is disturbed. However, it is recognized that with some highway projects it may be neither practicable nor desirable to provide onsite or offsite mitigation of disturbed wetlands at the time of construction through an immediate use of the wetland mitigation methods set forth in these Local Procedures. In these instances it is mutually agreed that an acceptable practice to mitigate disturbed wetlands may be to replace them totally or in part with substitute wetlands. These substitute wetlands will be within the same:
- watershed and
- biotic region (mountain range, plains, or desert)
- mountain range,
- plains, or
- high desert.
Watershed boundaries are shown on Figure 5.1 of Exhibit 5. Biotic regions are shown on Figure 5.2 of Exhibit 5 as:
Where practicable and desirable, substitute wetlands will also be of the same class is shown in Table 2.1 Exhibit 2. Existing wetlands acquired but not developed (enhanced) will preclude them from being included in the wetlands bank unless, the Interagency Group determines the wetlands are threatened with imminent destruction, and the interagency Group members agree to their being banked.
This substitute wetlands alternative will be defined as wetlands banking. At no time will the acreage wetland credit value be allowed to drop below zero in the wetlands bank. The WDT will obtain the approval of each Regulatory and Resource Agency prior to entering such acreage wetlands credit into the wetlands bank, or in applying previously approved wetlands credit to a proposed WDT project. The use of mitigation bank credits will not be used to offset impacts from any unauthorized activity.
On those WDT projects where there is an opportunity to establish an acreage wetlands credit through application of the wetland mitigation methods to wetlands that are not going to be disturbed. the WDT will consult with each Regulatory and Resource Agency for a ruling on the applicability of such a prospective wetlands credit on future WDT projects. This ruling will identify the wetland's interim features, functions, quality and interim acreage wetlands credit value. It will be recognized that the final wetlands credit value commonly is not determined until such time as these wetlands are approved for use in offsetting losses to future wetlands disturbed by WDT construction. Included in this ruling will be a mutually acceptable agreement as to who will own and maintain these wetlands as set forth in the Wetland Maintenance Section of these Local Procedures.
Land or wetlands eligible for consideration as wetlands credit for wetlands disturbed by proposed or future WDT construction include:
- lands owned or controlled by the WDT outside the highway right of way which can be developed into wetlands,
- existing wetlands that can be enhanced, and
- wetlands threatened with imminent destruction by others.
These lands and wetlands will be acquired and enhanced as agreed to by those signatory to the MOU. Additionally, they will be protected from degradation by the WDT so as CO encourage increases in their functional unit and acreage wetlands credit value. Acreage wetlands credit will be given only for the net benefits resulting from any enhancement efforts. Wetlands eligible for consideration only on a case basis as their future is uncertain include those:
- within the WDT right-of-way such as in roadside borrow ditches,
- associated with other highway features,
- found along irrigation canals and ditches.
The WDT will be responsible for maintaining the wetlands bank (WB). At no time will a WB deficit occur in any biological area or watershed. The Wetlands Bank Report (WBR) for the approved PM wetlands credit acreage will be reported to the Interagency Group after each:
- update, and
Concurrence by the Interagency Group members receiving the WBR will be assumed if no response is received by WDT within 20 calendar days from the date the statements are sent. The WBR accounting for the approved WB wetlands credit acreage will commence on the effective date of these Local Procedures. Wetlands credit approved by the Interagency Group prior to the effective date of these Local Procedures will be included in the WB. Exhibit 6 reflects the Wetland Banking Accounting Forms for the WBR.
It is recognized that, over time and prior to being needed for replacement purposes, the substitute wetland features, functions or quality may change - either improve or deteriorate. The actual WB credit will be determined at the time it is proposed for use by the Interagency Group using the wetlands evaluation methods set forth in these Local Procedures.
3.6 Wetland Maintenance - All wetlands added to the wetland bank through the wetland mitigation methods for the purpose of the MOU will be owned and maintained by the responsible party (e.g.; a Federal or State resource agency, local governmental body, conservation group, or landowner).
Maintenance responsibilities for acquired wetlands must be agreeable to these parties. The owner will enter into an agreement with WDT stipulating that the owner will take no actions that would impact or significantly degrade the wetland. Where a prospective owner cannot be identified, a conservation lease will be obtained by the WDT for the WGFD or FWS. Where it is determined that the WGFD or FWS fails to properly manage wetlands developed, or obtained and developed for them by the WDT for WA credit, the initial interim wetlands credit acreage estimate will apply when these wetlands are to be used to offset future wetland disturbances. Conversely, failure by a Land Management Agency or a private owner to manage wetlands obtained and developed through the provisions of these Local Procedures will be addressed as stipulated in the agreement between the WDT and the agency or private owner; in these instances, the actual wetlands credit value at the time the wetland is to be used to mitigate a wetland disturbance will apply.
3.7 Wetland Mitigation Banking Site Development Plans - All wetland mitigation banking site development plans will include details, presented in narrative and graphic form, illustrating how the proposal will be implemented. Such plans will include, at a minimum, grading plans, hydrologic modification, hydroperiad control, soils, and general planting schemes. The plans will include construction drawings and design specifications on areas to be excavated or filled.
All wetland mitigation banking sites will be designed to be easily managed and to function with little or no human intervention, and shall be ecologically and administratively self-sustaining.
4.0 COMPENSATION FOR SERVICES
Each Regulatory and Resource Agency agrees to provide travel and review costs for their particular agency to participate as set forth in these Local Procedures. Travel costs of Wyoming State Agencies for field trips, reviews and inspections beyond what is required by these Local Procedures will be negotiated on a case basis. The WDT will facilitate travel, where possible or necessary, by including other signatories in WDT airplane flights for field inspections.
5.0 OPERATIONAL PHASE
The purpose of the Operational Phase Section of these Local Procedures is to outline
- documentation procedures,
- application procedures, and
- attendant agency responsibilities and tasks.
Following the Report Documentation Subsection, the Operational Phase has been divided into the following five general Sub Phases commonly used in the plan development process for most WDT projects.
- Environmental Inspection
This plan development process and its relationship to the Sub Phases of these Local Procedures is based on the WDT Project Control System (PCS) as shown in Exhibit 7. A Sub Phase may be omitted when such omission is deemed necessary by the WDT. It is understood that such omission may necessitate the shifting of responsibilities and tasks from one Sub Phase to another. When this occurs the WDT Is responsible for:
- coordinating these proposed changes,
- notifying the other members of the Interagency Group in writing, and
- coordinating a mutually agreeable reallocation of operational responsibilities and tasks.
5.1 Report Documentation - The following reports, commonly generated by the WDT, will be pertinent to these Local Procedures.
- Draft and Final Environmental Determination Reports
- Draft and Final Reconnaissance Reports
- Draft Location Report
- Wetlands Bank Report.
The Interagency Group agrees to review and comment on the:
- Draft Environmental Determination Report,
- Draft Location Report, and
- other reports at their discretion.
These reports will be generated during three Sub Phases.
- Environmental Inspection
These reports will be distributed by the WDT to the Interagency Group for those projects having potential wetlands and other surface waters involvement.
Mitigation for wetlands and other surface waters will be addressed in each WDT report in a Section entitled Wetlands and Other Surface Waters Mitigation. Each subsequent report will upgrade and further refine the findings in this Section. It is expected that some findings will ultimately emerge in a final report(s) as acceptable design proposals, and the others will not be considered further. The Interagency Group agrees to assist the WDT in upgrading and refining those issues in which they have expressed concern.
For each potential route location or build alternative that may impact wetlands and other surface waters the reports, to the extent practicable for a particular report and where applicable, will address the following items in the following sequence.
- Describe the candidate wetlands and other surface waters subject to disturbance and the nature of that disturbance.
- Document whether the MOU and these Local Procedures are applicable and, if not, that no further documentation will be required.
- Indicate those wetlands and other surface waters where a Categorical Exclusion is expected to apply.
- Discuss the expected magnitude of any potential temporary and permanent impacts that might occur.
- Provide detailed discussion on why mitigation by avoidance was not recommended where a wetland or other surface water disturbance will occur and show that avoidance is not practicable.
- Provide discussion on mitigation sequencing and mitigation alternatives that might be applicable.
- Indicate the preferred mitigation alternative.
- Identify specific mitigation measures for all proposed mitigation alternatives.
- Propose expected wetland bank credit acreage or debit against available wetland bank credit associated with each mitigation alternative.
- Identify and document input received from each responding Regulatory and Resource Agency.
- Document those agencies not responding.
- Discuss issues raised by all concerned parties.
- Document disputes and their resolution.
5.2 Environmental Sub Phase - This Sub Phase begins when the WDT requests input for the draft Environmental Determination (ED) from each Regulatory and Resource Agency. Subsequently, the draft ED will, to the extent practicable, address those items listed in Section 5.1 of these Local Procedures except when considering the unavoidable disturbance option which will always be addressed because justification is mandatory. This Sub Phase is preliminary in nature and is for the purpose of:
- alerting each Regulatory and Resource Agency to a proposed highway project.
- obtaining an early and separate response from these agencies.
An early response is recognized as important as it allows the WDT to identify potential and readily apparent conflicts to be addressed in the draft ED, and then expeditiously resolve them in the following Sub Phases so as to avoid delaying a highway project.
Commonly, respondents need only provide generic responses to the request for input. However, on those occasions where environmental concerns are raised by the Regulatory or Resource Agencies regarding any wetlands or other surface waters expected to be disturbed by the proposed WDT project, the draft ED will address those concerns. In those instances, the Regulatory or Resource Agency will, when practicable, indicate which proposed mitigation alternatives they feel would probably have little chance of success, and why. In this regard it is recognized that in this Sub Phase estimated ranges of values and/or general observations based on professional judgment will be sufficient.
The WDT will summarize and document the following in its final ED:
- Responses received from each Regulatory and Resource Agency and subsequent findings related to these responses
- The WDT's priority for any proposed wetlands and other surface waters mitigation alternatives
- Other alternatives provided by the Interagency Group
- Input provided by others
Where apparent, the Wetlands and Other Surface Waters Mitigation Section of the final ED will highlight those areas where each Regulatory and Resource Agency as well as others will need to coordinate so as to resolve conflicting responses; the WDT will be responsible for this coordination in subsequent Sub Phases.
Where a written response addressing wetlands and other surface waters is not received from the Regulatory and Resource Agencies within the time constraints set forth in the draft ED, the WDT will proceed with the Reconnaissance Sub Phase having incurred the responsibility for pursuing in the subsequent Sub Phases only the wetlands mitigation alternatives, mitigation measures and mitigation methods identified by the WDT and the responsive agencies. This in no way is intended to preclude at a later date COE, EPA or FHWA required options, measures, or methods that emerge from reviews by the:
- EPA, or
This Sub Phase concludes with WDT's distribution of the final ED to each Regulatory and Resource Agency. Comments on the final ED need not be provided unless an agency so desires.
5.3 Reconnaissance Sub Phase - This Sub Phase begins with a plans-in-hand reconnaissance field inspection. Commonly this inspection will involve only WDT personnel. By definition the purpose of this Sub Phase is primarily for the WDT to:
- further evaluate and develop only the wetlands and other surface waters mitigation alternatives, measures and methods advanced from the Environmental Sub Phase,
- resolve any internal concerns in preparing for the Environmental Inspection Sub Phase, and
- address the known concerns the Interagency Group and others having an interest in the impacted wetlands or other surface waters.
During the reconnaissance field inspection associated with this Sub Phase the evaluation of the candidate wetlands and other surface waters mitigation alternatives, measures and methods will be based on:
- more definitive route corridors or build alternatives than were available in the Environmental Sub Phase,
- responses to the draft and final ED, and
- input received from each Regulatory and Resource Agency and others following the Environmental Sub Phase.
When requested by the WDT, each Regulatory and Resource Agency agrees to assist the WDT by:
- clarifying responses to the draft or final ED regarding items advanced from the Environmental Sub Phase, and
- identifying data and analysis detail needed for the WDT to address their responses in preparing for the Environmental Inspection Sub Phase.
The findings from this inspection and subsequent coordination with others will be used to address those items advanced from the Environmental Sub Phase. It will be mandatory far the WDT to justify any unavoidable impacts that are proposed. These items will be addressed in the Wetlands and Other Surface Waters Mitigation Section of the draft Reconnaissance Report. An information copy of this draft report will be distributed to each Regulatory and Resource Agency by the WDT; review and comment by these agencies is not mandatory.
Following completion of the draft Reconnaissance Report, the WDT will be responsible through close coordination with each Regulatory and Resource Agency for preparing the final Reconnaissance Report and the Reconnaissance Plans for the project. In addition to other related highway design and construction matters, this final Reconnaissance Report will address in the Wetlands and Other Surface Water: Mitigation Section those items advanced from the Environmental Sub Phase for each:
- candidate highway location or construction alternative. and
- findings subsequent to the draft Reconnaissance Report.
These items will have been further refined during this Sub Phase by the WDT through coordination with each Regulatory and Resource Agency following completion of the draft Reconnaissance Report.
This sub phase concludes with the WDT's distribution of the final Reconnaissance Report to each Regulatory and Resource Agency; review and comments by these agencies is not mandatory.
5.4 Environmental Inspection Sub Phase - This Sub Phase begins with a joint plans-in-hand field inspection by an Environmental Inspection Team (Team). Members of the Team invited to attend and comment may include representatives from the:
- interested Regulatory and Resource Agency, and
- party(ies) nominated by the WDT who are not members of the Interagency Group that may have jurisdiction or ownership.
For this inspection the WDT will be responsible for:
- coordination, and
- designating a facilitator.
The purpose of this Sub Phase is for the Interagency Group and others having an interest in the impacted wetlands to select, for the WDT's preferred highway location or build alternative, mutually agreeable wetlands mitigation:
- and methods.
Attendance of the Interagency Group at the Surface water field inspection will be discretionary. However, each Interagency Group member agrees to:
- nominate a proxy, or
- provide written or verbal notification of their intent not to attend.
When an agency declines to attend or nominate a proxy, it will provide the WDT with a written or verbal statement regarding their current position on any impacted wetlands or other surface waters prior to the field inspection. This statement will be considered as interim by those in attendance at the inspection and be documented by the WDT in its Location Report discussed below.
At least three (3) calendar weeks prior to the field inspection associated with this Sub Phase the WDT will be responsible for notifying each Regulatory and Resource Agency of the inspection date. At the time of notification the WDT will provide a copy of the Location Report and the Location Plans for the inspection. This Report will include a Wetlands and Other Surface Waters Mitigation Section. This section of the Location Report and the Location Plans will provide upgraded findings on those items. advanced from the Reconnaissance Sub Phase for each candidate highway location or construction alternative. It will be mandatory for the WDT to justify any unavoidable impacts. The Location Report and Location Plans for these items will be based on the final Reconnaissance Report as well as any findings subsequent to that report. The FHWA will be the lead agency where federal funding is involved. In other instances, the WDT will assume the role of lead agency except where another agency requests this role and the Interagency Group members unanimously agree. The lead agency will provide guidance to the extent practicable under its rules and regulations during this field inspection. The lead agency will consider input provided by members of the Interagency Group and any other input that may be available. The lead agency will indicate in general terms which wetland mitigation alternative, measures and methods the WDT should advance to the Design Sub Phase for:
- inclusion in their contract plans,
- identification of permit type, and
- processing of permits.
All wetlands and other surface waters will be addressed at this inspection. The purpose of this inspection is to allow the WDT to expeditiously proceed with the design of the highway with a high probability that no substantive changes will be required during the Design Sub Phase. It is recognized that this guidance may be subject to change as a result of input from:
- those who are not members of the Interagency Group,
- COE public interest review, and
- dispute actions as provided for by these Local Procedures.
During the Design Sub Phase and upon reviewing input from the Interagency Group or dispute actions, a final decision will be made by the WDT as to which of the mitigation methods approved by the COE is to be used.
The proposed wetland mitigation alternatives, measures and methods considered during this Sub Phase will rely on the analyses and data mutually agreed to during the Environmental and Reconnaissance Sub Phase. During the inspection, agreement will be reached by the Interagency Group to the extent possible under their rules and regulations regarding the need to proceed as provided by these Local Procedures; and if so, the type and detail of analysis and data to be used in the Design Sub Phase will be identified.
The Grading Report and Plans will be developed by the WDT in close coordination with each Regulatory and Resource Agency following the Environmental Inspection Sub Phase. In addition to other related highway design and construction matters, this Grading Report will address in the Wetlands and Other Surface Waters Mitigation Section those items advanced from the Reconnaissance Sub Phase and Environmental Inspection Sub Phase pertaining to the selected highway location or construction option.
This sub phase concludes with the WDT's distribution of the Grading Report and Plans to each. Regulatory and Resource Agency; comments on the Grading Report need not be provided unless an agency so desires.
5.5 Design Sub Phase - This Sub Phase is final in nature. Its purpose is to:
- complete the plans for letting a highway project to contract,
- expeditiously process any permit documents, and
- coordinate final permit requirements.
The purpose of this coordination is to obtain input for preparing a permit for a project including the mitigation alternatives, measures and methods proposed for all impacted wetlands and other surface waters. This proposal will be based on the findings or any ruling as documented in the Wetlands and Other Surface Waters Mitigation Section of the Grading Report, and Plans and subsequent comments and recommendations agreed to by all members of the Interagency Group.
Using the requirements and recommendations obtained through this coordination, the WDT will, through continuing coordination and negotiation with each Regulatory and Resource Agency, develop these findings into the final mitigation alternatives, measures and methods for all wetlands and other surface waters and include these in the contract plans and documents. Based on these contract plans and documents the WDT will develop and submit the Permit documents, including mitigation measures, and methods for approval in accordance with the existing rules and regulations. At this point it is agreed that the WDT can normally expect routine approval of the permit documents although it is understood that this is, again, subject to change as a result of any input received from those not members of the Interagency Group during the public interest review process of the COE and the lead agency.
The Design Sub Phase concludes with the letting of the highway project to contract.
5.6 Construction Sub Phase - This Sub Phase begins with the approved disturbance of the wetlands or other surface waters. Prior to such disturbance the WDT will provide written notification to the COE and Wyoming Department of Environmental Quality (WDEQ). Written notification of changes to this time frame will also be communicated to the Interagency Group by the WDT.
For safety reasons formal, unannounced site inspections outside designated detour routes, and within identified project limits will not be undertaken by members of the Interagency Group without first coordinating with the WDT District Engineer. It is understood that this does not preclude the right of the Interagency Group to make routine, unplanned inspections to assure regulatory compliance. Any uncoordinated inspections are understood as being made at the risk of the individuals performing the inspection.
Where unexpected circumstances during construction result in the need to change from the mitigation alternatives, measures and methods of the contract documents, the cognizant WDT District Engineer will convene a meeting between each interested Regulatory and Resource Agency regardless of the perceived significance of the change.
Violations of any permit will be handled through established procedures.
This Sub Phase ends with the written notification from the WDT to the agency having primacy that the work which required the permit for the disturbance of wetlands or other surface waters has been completed.
Exhibits No's 1, 2, 3, 4, 5, 6, and 7 are attached hereto and made a part of these Local Procedures.
7.0 MODIFICATION, TERMINATION AND REVIEW OF THESE LOCAL PROCEDURES
7.1 Modification - These Local Procedures and the criteria of Exhibits 1, 2, 3, 4, 5, 6, and 7 may be modified with the approval of the Interagency Group. Modifications may be proposed by one or more members of the Interagency Group. Proposed modifications will be submitted to the signatories for a sixty (60) calendar day period of review. Approval of the proposed modification will be indicated by written acceptance.
7.2 Termination - A member of the Interagency Group may terminate their participation in the MOU and these Local Procedures by giving a thirty (30) day written notice to the other members. The MOU and these Local Procedures replace previous wetlands and other surface waters related agreements between the WDT (formerly the Wyoming State Highway Department) and the WGFD.
7.3 Review - The MOU, these Local Procedures, and Exhibits 1, 2, 3, 4, 5, 6, and 7 will be viewed as working documents to be reviewed when requested by an Interagency Group member.
8.0 STATUTORY LIMITATIONS
8.1 Statutory - All provisions of the MOU and these Local Procedures are subject to the requirements of the:
- laws of the United States,
- rules and regulations of the United States,
- laws of the State of Wyoming, and
- rules and regulations of Wyoming.
8.2 Signatory - Nothing in the MOU or these Local Procedures will be construed as limiting or affecting in any way the authority or responsibility of the Interagency Group, or as binding on the members of the Interagency Group, to perform beyond or contrary to their respective authorities.
1 MOA between the COE and the FHWA relating to Nationwide Permits on Categorical Exclusion (CATX) projects.
2 Such things as acres of wetland or volume of flood storage.
3 The 404(b)(1) Guideline Compliance public interest review.