David Demmer
When a construction project impacts a wetland, the landowner must pay to replace it with wetland credits purchased from a wetland bank. Sounds simple enough, but to many people there is confusion over what a wetland bank is. Or what mitigation credits are, for that matter.
State and federal law require public agencies, developers and home owners who destroy wetlands for their projects to purchase mitigation credits in wetlands as close to the site that has been destroyed as possible, preferably in the same watershed.
Cook County Assistant Planning & Zoning Administrator David Demmer was in front of the county board on Tuesday, September 9 with a brief history of Section 404 of the Clean Water Act and Minnesota’s Wetland Conservation Act (MN Rule 8420), which describe how wetlands are defined and identified, and how those rules govern development that impacts swamps, marshes, bogs, streams and other low-lying areas that are critical to the overall health of a watershed.
Section 404 defines wetlands as “areas that are inundated or saturated by surface groundwater 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.”
This law came about because the Environmental Protection Agency (EPA) estimates that over the last 3 centuries over half of the wetlands in the United States have disappeared.
A wetland adds both environmental and economic benefits to the area it is in, with opportunities such as hunting, fishing, bird watching and photography made available to the public on government-owned wetlands, while the wetlands themself provide protection from flood waters while filtering containments in the ground water.
Demmer said there are three main types of wetland banks: preservation, where the goal is to preserve the area; restoration, where the function of an impacted wetland is restored; and creation, where a new wetland is constructed.
The Minnesota Board of Water and Soil Resources oversees Minnesota’s Wetland Bank program. The program is comprised of approximately 140 private banks scattered around, including one in Cook County.
Due to the large amount of intact and relatively pristine wetlands in Cook County, preservation of wetlands has been the way that Demmer has figured how to create local wetland banks.
“The only type of bank that we can realistically establish in Cook County is a wetland preservation bank,” he said to the commissioners.
These areas are pristine, highly functional, and have an exceptional natural resource value to them, he said, adding, “We’re fortunate that we have resources in Cook County.”
In Cook County Demmer works on a panel called TEP (technical evaluation panel) with members of the Soil and Water Conservation District, the Minnesota Board of Water and Soil Resources, Minnesota Department of Natural Resources and the Army Corps of Engineers to figure out, “what wetlands are out there that are eligible for credit,” he said.
Establishing a preservation wetland bank in Cook County is difficult, said Demmer, because there are “high hurdles” to prove that these wetlands are exceptional natural resources that merit preservation.
Also, he said, a demonstrable threat to the wetland resource needs can be proven. This is an easier argument in urban areas when, “there is a Wal-Mart over here and a strip mall over there and a wetland in the middle,” said Demmer.
“It’s more difficult to use logging or downstream degradation as an argument for demonstrable threat to regulators in St. Paul, Chicago or Washington, D.C.,” explained Demmer.
The typical process to permit a wetland bank can take up to three years and requires 300 to 400 hours of his time, said Demmer, with the owner of the land paying fees up front for the scoping and concept review process.
About five years ago Demmer began working to identify possible areas for wetland banks in the county and found about 60 sites, but over the years he has whittled that down to about 20 sites. “It’s an extensive process. It’s proven to be pretty difficult to get a site up here,” he said, adding that to date one site has been approved and one is currently in scoping review while two more candidates, “are looking like they will be up for scoping review next year.”
These credits are expensive. Commissioner Bruce Martinson said it cost $75,000 per acre for wetland credits to replace those wetlands lost when the Devil Track airport extension project was permitted.
There are only three steps involved to create a wetland bank, said Demmer. “The first step is called a scoping review; this step is essentially the first pass to see if you are in the game. The second step is the concept plan and then the final full application.”
Demmer said completed projects are monitored for five years, to ensure that the wetland will function into perpetuity. Each site must maintain three parameters: hydrology, vegetation, and presence of wetland (hydric) soils.
Commissioner Sue Hakes asked Demmer what would happen if a bank was full and the owner stopped taking care of it. Demmer said regulatory authority can perform random audits and inspections of the wetland bank, and regulators have the legal authority to enforce monitoring provisions and conditions of approval.
Commissioner Garry Gamble said he sits on a committee that is exploring different ways to better use the proceeds generated from wetland banks. Although the law was well intended, said Gamble “the one size fits all” plan doesn’t work well. Gamble said the committee is looking at ways to give the money to local authorities where it was generated from and then it could be spent as seen fit by that local government.
Hakes asked how a price for wetland bank credits is established and Demmer said the private seller and buyer determine price.
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