Current through Register Vol. 48, No. 38, September 20, 2024
Actions that require coordination under this Part shall not be
commenced until completion of the wetland review process and a wetland
compensation plan has been approved for any unavoidable adverse wetlands
impacts. Coordination with the Department shall be accomplished through the
wetland review process as defined in this Section or as provided in Agency
Action Plans or Memorandums of Agreement (MOA) approved in accordance with
Section
1090.40
of this Part. The wetland review process shall consist of the following:
a) Wetland Impact Determination
1) When an action covered by this Part is
proposed, the agency initiating or supporting the action shall cause to have
completed and submitted a Wetland Action Report to the Department. This Report
shall be submitted as early in the planning process as practicable. The purpose
of this report is to identify the specific location of a proposed project in
order to determine if a wetland is likely to be adversely impacted by the
proposed action. The Wetland Action Report shall include but not be limited to
the following:
A) Name and address of the
agency proposing the action;
B)
Sufficient detail (field reports, surveys, site inventories, maps and/or
photographs) to determine the presence or absence of a State jurisdictional
wetland;
C) The precise location of
the proposed action sufficient to show the relationship of the State
jurisdictional wetland to the proposed action;
D) An accurate description of the proposed
action in sufficient detail to allow a thorough review of the potential impact
to a State jurisdictional wetland. This may include a site plan, soil erosion
control plan, an assessment of the benefits to the wetland, or similar
information. Sufficient detail is not intended to include final design level
drawings or calculations;
E)
Anticipated starting and ending dates of the proposed action (e.g., land
clearing, project construction, etc.); and
F) Discussion of alternative actions
considered and supporting justification of the selected alternative if that
alternative will or is likely to have an adverse wetland impact.
2) Unless otherwise stated in the
AAP or MOA, the Department shall, within 30 days after the receipt of a wetland
action report inform the applicant in writing of any deficiencies in the report
or of further information the Department needs in order to evaluate the report.
In the event no such request is made by the Department, the report shall be
deemed filed on the expiration of the thirtieth day. The Department shall
notify the agency in writing of the date the report is deemed filed. Unless
otherwise stated in the AAP or MOA, from the date the report is deemed filed,
the Department shall have 60 days to complete its review. The 60 day review
period may be extended by written agreement between the applicant and
Department. Unless otherwise stated in the AAP or MOA, the Department shall
provide one of 3 responses to the agency or applicant proposing the action
within 60 days after receipt of a wetland action report which is deemed filed:
A) If no adverse impacts to a State
jurisdictional wetland will or are likely to occur, a letter shall be sent
indicating that further coordination with the Department is not necessary and
that the proposed action may be carried out as planned.
B) If an adverse impact to a State
jurisdictional wetland is likely to or will occur, and practical alternatives
to the proposed action do not exist, a letter shall be sent approving the
proposed action with restrictions or limitations as the Department concludes
are necessary in order to meet the purpose of the Act.
C) If an adverse impact to a State
jurisdictional wetland is likely to or will occur, and practical alternatives
to the proposed action exist, a letter shall be sent indicating that the
proposed action shall not be carried out as planned.
D) The agency or applicant may request a
reevaluation of the Department's response to a Wetland Action Report. The
Department shall have 30 days to complete a reevaluation. The 30 day period can
be extended by a written agreement between the agency or applicant and
Department.
3) A wetland
impact determination is valid for a period of 3 years following the issuance of
a written notice to the agency or applicant submitting the request. The
Department shall grant an extension upon demonstration by the agency or
applicant that the project is being pursued in good faith and that conditions
of the site have remained substantially unchanged.
b) Emergencies
Two types of emergency conditions that require special
treatment:
1) Where emergency
circumstances pose an immediate threat to human life, or severe loss of
property is imminent from situations involving natural or man-made disasters,
casualties, or national defense or security emergencies, and the action must be
taken immediately, the agency can proceed without notifying the Department
prior to taking action. A wetland action report shall be filed and a wetland
impact determination shall be initiated as soon as practicable after the
emergency is under control, but not to exceed 30 days. If necessary, this shall
be followed by the development, approval, and implementation of a wetland
compensation plan.
2) Where
emergency circumstances pose a threat to human life or severe loss of property
and the action must commence within 30 days, the agency shall contact the
Department prior to commencing the action and explain the nature of the
problem. The wetland impact determination shall be initiated as soon as
practicable after the emergency is under control, but not to exceed 30 days. If
necessary, this shall be followed by the development, approval, and
implementation of a wetland compensation plan.
c) Wetland Compensation Plans
1) If the wetland impact determination
establishes that the proposed action is likely to have an adverse impact on a
State jurisdictional wetland, the agency or applicant is responsible for the
development and implementation of a wetland compensation plan. A wetland
compensation plan shall be submitted either:
A) Along with the request for a wetland
impact determination; or
B) After
the Department submits its formal written response to the wetland impact
determination.
2) If the
wetland compensation plan is submitted as part of the wetland impact
determination it shall be used in the evaluation of that material. However,
formal review and response to the wetland compensation plan shall not occur
until after the Department and agency or applicant have resolved all issues
related to the wetland impact determination.
3) The wetland compensation plan shall
include but not be limited to the following:
A) Name and address of the agency or
applicant responsible for the development and implementation of the wetland
compensation plan;
B) Description
of the proposed replacement project including a clear statement of
goals;
C) Identification of the
wetland type which will be adversely impacted and the wetland type that is to
be established;
D) A description of
the wetland that will be adversely impacted and an evaluation of the current
land use, biological, hydrological, and soil characteristics of the site where
the replacement wetland is to be established;
E) The precise location of the wetland that
is to be established including a map, legal description, and distance from the
wetland that will be adversely impacted;
F) Site plan that includes the plant
materials and methods to establish those plant materials, proposed contours of
the wetland and surrounding buffer to be established, source(s) of water,
anticipated hydro-period(s) of the proposed wetland and any water control
structures, the watershed draining into the proposed wetland, and relationship
of the site to surrounding land uses;
G) Operation, management and maintenance plan
for the site including procedures to restrict further adverse impacts to the
site, such as the use of buffer areas, restricting future construction within
the wetland compensation area, etc.;
H) The monitoring plan to evaluate the
success and/or failure of the wetland establishment effort, including the use
of measures to correct identified deficiencies or problems; and
I) Anticipated starting and ending dates of
the wetland compensation plan.
If the applicant is unable to develop a wetland compensation
plan, a request for consideration of other compensation alternatives may be
made. The request for consideration of other compensation alternatives must be
a written proposal detailing why a form of wetland compensation other than the
establishment of a replacement wetland is being requested and specific details
describing the proposed action.
4) The Department shall review the wetland
compensation plan and determine if the plan is likely to result in the
successful establishment of a replacement wetland and meets the overall goals
of the Act. Unless otherwise stated in the AAP, the Department will provide one
of 2 responses to the agency or applicant proposing the action within 45 days
after receipt of the wetland compensation plan:
A) That the plan meets the overall goal of
the Act, is likely to result in the successful establishment of a replacement
wetland and provides the proper wetland compensation in accordance with this
Part. A letter will be sent indicating that the agency or applicant may proceed
with implementation of the plan.
B)
That the plan does not meet the overall goal of the Act and/or will not likely
result in the successful establishment of a replacement wetland. The Department
shall notify the applicant in writing that the plan fails to meet the intent of
the Act. The Department may include recommendations that, if implemented, will
bring the plan into compliance with the Act. It shall be the agency's or
applicant's responsibility to revise the plan and submit a plan that complies
with the Act and this Part. The Department shall not unreasonably withhold
approval of an applicant's wetland compensation plan.
5) Department approval of a wetland
compensation plan is valid for a period of 3 years following the issuance of
written Department approval to proceed. The Department shall grant an extension
without modification to the plan upon demonstration by the agency or applicant
that conditions at the site have remained substantially unchanged. A wetland
compensation plan is not complete until after all elements of the plan have
been successfully implemented by the agency or applicant and approved by the
Department.
6) The agency or
applicant shall submit status reports to the Department to demonstrate progress
towards implementation of the wetland compensation plan. These reports shall
include:
A) Post construction site evaluation
report. This report shall be submitted within 90 days after the initial
construction, planting and all associated work on the site plan have been
completed;
B) Status reports. Up to
4 annual reports on the status of the replacement wetlands and associated
buffer as provided for in the wetland compensation plan shall be provided to
the Department;
C) Final report. A
final report on the status of the replacement wetland and associated buffer.
The final report is due 5 years after implementation of the wetland
compensation plan; and
D) Transfer
report. If the replacement wetland is to be transferred to another entity, a
transfer report shall be submitted to the Department for approval. This report
shall provide all details associated with the transfer.
7) Unless the Department otherwise allows,
compensation shall occur either prior to or concurrently with the activity for
which a wetland impact determination is sought. Compensation for adverse
impacts to a wetland, its functions, or associated buffer area shall be
accomplished using best technology currently available, performance standards
and effective monitoring. The Department shall establish guidance for locating
and developing wetland compensation plans and standards to ensure that a
wetland compensation project is completed as planned to measure the success of
compensation projects and correct compensation projects that fail. Use of
uplands for wetland compensation sites are generally less suitable than lower
lying lands and their use is discouraged. Every effort should be made to avoid
the use of upland sites classified as "Prime farmland" by the USDA Natural
Resources Conservation Service.
8)
The compensation rate for adverse wetland impacts has been developed based upon
wetland quality, function, type, degree of adverse impact, and location of the
compensation site. Compensation ratios have been made progressively higher to
encourage avoidance and minimization of adverse impacts to wetlands. The
following table of wetland compensation ratios shall be used to determine the
final value of compensation required for an action that causes an adverse
wetland impact.
Location of the Replacement
Wetland
|
|
On-Site
|
Off-Site
|
Out-of-Basin
|
Degree of Adverse
Impact
|
Min.* Alt.
|
1.0:0****
|
1.5:1
|
2.0:1
|
Sig.** Alt.
|
1.5:1*****
|
2.0:1
|
3.0:1
|
Dest.***
|
2.5:1
|
4.0:1
|
5.5:1
|
The following explanations are provided for the
abbreviations used in the above table:
|
* Min. Alt. equals minimal alterations;
|
** Sig.Alt. equals significant alterations; and
|
*** Dest. Equals destruction.
|
**** The 1.0:1 ratio applies to all other types of
wetland vegetation, substrate, or wetland type except those wetlands that have
woody vegetation.
|
***** This ratio applies if the vegetation of the
adversely impacted wetland is woody.
|
The ratios in the above table apply, unless the adversely
impacted wetland has one or more of the following situations present: This
includes:
A) The presence of a State
or federally listed endangered and threatened species. (Listed plants or
mussels shall be deemed "present" if individuals or populations occur within
the area that is to be adversely impacted by a proposed action. For mobile
species, "presence" shall be based on the existence of confirmed nesting or
breeding sites in the area to be adversely impacted by the proposed
action.)
B) The presence of
essential habitat of a State or federally listed endangered and threatened
species.
C) The presence of an
Illinois Natural Area Inventory Site (INAI). The INAI is maintained and updated
by the Department following the criteria and methodology described by Jack
White, 1978, in the Illinois Natural Area Inventory - Technical Report,
University of Illinois Department of Landscape Architecture, p 426.
D) A wetland that is comprised of a plant
community that receives a floristic quality native index score of 20 or more
and/or a native mean coefficient of conservatism of 4.0 or greater using the
procedure described in Plants of the Chicago Region (Swink and Wilhelm
94).
E) If any of the situations
described in subsection (c)(8)(A) through (D) of this Section occur, the
compensation ratio used to determine the amount of wetland compensation
required is always 5.5:1.
F)
Compensation ratios refer to replacement area, quantified wetland functions, or
dollar value when compared to the wetland area that is adversely impacted. The
procedure for computing wetland compensation requirements shall be to multiply
the appropriate wetland compensation ratio by the unit of compensation
(replacement area, function and/or monetary contribution). Replacement area
refers to the amount of wetland compensation required and is computed by
multiplying the wetland area that is adversely impacted by the appropriate
compensation ratio. Wetland function refers to one or more of the physical
processes identified in
20 ILCS
830/1-2. Use of this alternative is dependent upon
adoption of a scientifically valid procedure as provided in Section
1090.80 of
this Part. Functional units shall be computed separately for each adversely
impacted wetland type. These units shall be multiplied by the appropriate
wetland compensation ratio. Compensation requirements for each wetland type
shall then be aggregated to determine the total amount of wetland compensation
required. If this procedure is used, in no instance shall the replacement
amount of a wetland be less than the amount of compensation computed using
replacement area. Determination of dollar value shall be based upon the fair
market value of the adversely impacted wetland, normal and customary cost for
the establishment of a replacement wetland (including all planning,
engineering, construction, planting and monitoring cost), and operation and
maintenance cost of the area for a minimum of 10 years. Dollar value shall be
established for an acre of replacement wetland. This dollar value shall be
multiplied by the number of wetland acres adversely impacted and the
appropriate compensation ratio to determine the total monetary compensation
required.
G) The agency or
applicant shall request the approval of the Department in the method of
compensation to be used. The Department shall not unreasonably withhold its
approval. The first priority method of wetland compensation shall be to use
replacement area. The second priority methods of wetland compensation shall be
to use wetland function and dollar value. Use of the wetland function method is
dependant upon the development and adoption of scientifically valid procedures
for the identification and quantification of wetland functions.
H) An agency or applicant may request
approval to use existing public lands for wetland compensation projects. The
Department shall have the final approval on the use of existing public lands
for this purpose.
9) If
an agency or applicant is not able to develop a sound wetland compensation plan
that meets the objectives of the Act or if unique opportunities exist to
further the goals of the Act through another means, an agency or applicant may
make a formal request to the Department to not require the establishment of the
same type of wetland or a replacement wetland as a component of a wetland
compensation plan. The Department shall consider such request and may approve:
A) The acquisition of high quality wetlands
and associated buffer;
B) The
funding of needed relevant research; or
C) Development of a wetland compensation plan
that includes replacement of the same and different wetland types as the
wetland that was adversely impacted. If either the alternative in subsection
(9)(A) or (B) is approved, the Department shall determine the dollar value that
must be provided to meet the compensation requirement.
d) The Department may revoke its
approval of a wetland determination or a wetland compensation plan for cause,
including violation of conditions of approval, obtaining approval by
misrepresentation or failing to disclose a relevant or material fact. The
Department shall notify the agency or applicant in writing and provide an
opportunity for response.
e) An
agency may request development of a category of actions called Programmatic
Actions for inclusion in an Agency Action Plan. Actions must meet the following
criteria in order to be placed in the category of Programmatic Actions:
1) They must be repetitive actions for the
repair, maintenance, or improvement of existing structures or rights-of-way;
and
2) Have no practicable
alternatives that would avoid an adverse wetland impact. Actions included in
this category may involve the acquisition of additional land to accommodate the
work, provided that it is contiguous to the property on which an existing
structure is located and it meets the criteria prescribed in subsections (e)(1)
and (2) of this Section. Adverse wetland impacts resulting from projects
carried out under this subsection shall require compensation according the
wetland compensation matrix defined in subsection (c)(8) of this
Section.