Developments with Proposed Impacts to Waters of the United States (WOUS) include “navigable waters” (i.e., major lakes, rivers, streams, and associated hydrologically-connected wetlands) that are regulated by the U.S. Army Corps of Engineers (USACE) under the federal Clean Water Act (CWA) or Rivers and Harbors Act (RHA). For developments that will impact WOUS, the applicant must provide a wetland submittal to the SMC (certified community, where applicable) that includes the following:
1. A wetland determination report for the site (see “Wetland Determinations” section for report requirements),
2. A written jurisdictional determination (JD) from the USACE or SMC documenting which wetlands/waters on the development site are WOUS, and
3. A copy of the USACE permit authorizing the proposed impacts to WOUS or a letter from the USACE stating that a permit is not required for the proposed activity (note: the USACE permit is a separate authorization and is required prior to issuance of the WDP by the SMC or certified community). The USACE-Chicago District’s permit application checklist can be viewed at USACE Permit Application.
The USACE-Chicago District’s current regulatory program requires a minimum mitigation acreage replacement ratio of 1.5:1 for WOUS impacts exceeding 0.1 acre (greater than 0.25 acre for single-family lot). A higher mitigation ratio is required for proposed impacts to WOUS that qualify as high quality aquatic resources (HQAR). See Appendix A in USACE-Chicago District’s Regional Permit Program for HQAR designations: USACE HQAR Designations. The WDO requires mitigation within Lake County, Illinois, for all WOUS impacts occurring in Lake County that exceed the mitigation threshold of the USACE’s regulatory program, with first priority being within the same major watershed in the county (Des Plaines River, Fox River, North Branch-Chicago River, and Lake Michigan).
Developments with Proposed Impacts to Isolated Waters of Lake County (IWLC)
IWLC are defined in Appendix A of the WDO as “[a]ll waters such as lakes, ponds, streams (including intermittent streams), farmed wetlands, and wetlands that are not under U.S. Army Corps of Engineers jurisdiction.”
Who Reviews and Authorizes IWLC Impacts?
If the development site is located within an IWLC-certified community, the wetland submittal should be directed to the community’s CWS. See contact information for CWS and EO.
If the development site is located within a standard certified community (i.e., not IWLC-certified) or in a non-certified community, the wetland submittal may be directed to either of SMC’s principal wetland specialists: Glenn Westman or Juli Crane.
What is Required for the IWLC Impacts Wetland Submittal?
The following items are to be included with the IWLC wetland submittal, at a minimum:
1. A written jurisdictional determination (JD) from the USACE-Chicago District or SMC documenting which wetlands/waters on the development site are IWLC.
2. A cover letter signed by a CWS that provides a clear project purpose and need statement, a description of the proposed activity, area (in acres) of wetland impact, and a statement on the impact category to be used, as follows:
|Category-I: Impacts less than or equal to one (1) acre that do not impact high quality aquatic resources (HQARs). See WDO, Appendix L for IWLC-HQAR designations: WDO HQAR Designations|
|Category-II: Impacts greater than one (1) acre and less than two (2) acres that do not impact HQARs|
|Category-III: Impacts greater than or equal to two (2) acres or impacts to HQARs (any acreage amount)|
|Category-IV: Impacts for the restoration, creation and enhancement of wetlands, provided that there are net gains in aquatic resource function. Category-IV activities also may include shoreline and streambank restoration activities described in WDO Article IV, Section C.2.d.(4).|
3. A completed WDP application form signed by a CWS.
5. Development site plan(s) showing the boundaries of all existing wetlands, farmed wetlands, or water bodies on the ownership parcel, including the development site, and the areas of proposed wetland impacts.
6. A statement on the occurrence of any HQAR on or adjoining the development site.
7. Documentation that the development is in compliance with the Illinois Department of Natural Resource’s (IDNR) Endangered Species Consultation Program and the Illinois Natural Areas Preservation Act [520 ILCS 10/11 and 525 ILCS 30/17].
8. For developments involving State of Illinois funding or pass-through funding, documentation that the development is in compliance with the Interagency Wetland Policy Act of 1989 [20 ILCS 830] as administered by the IDNR.
9. Documentation that the development is in compliance with the U.S. Fish and Wildlife Service’s (USFWS) consultation program under the federal Endangered Species Act.
10. A mitigation plan meeting the WDO requirements (see “Is Mitigation Required?” section below).
11. A copy of the Natural Resources Information Report (NRI) for the development site from the McHenry-Lake County Soil and Water Conservation District (if required under state statute 70 ILCS 405/22.02).
12. For Category-II impacts only: A narrative of the alternative measures taken to avoid, minimize, or mitigate for IWLC impacts.
13. For Category-III impacts only: A narrative of the measures taken, in sequence, to avoid and minimize wetland impacts to IWLC before mitigation is considered.
14. For Category-IV impacts only: A narrative on the benefits to the aquatic environment of the proposed development.
What is SMC’s General Permit #2?
General Permit #2 (GP-2) provides a stream-lined process for developments with minor impacts to IWLC (less than 0.1 acre of non-HQAR or less than 1,000 ft2 of HQAR). No mitigation is required for developments authorized under GP-2. Note: GP-2 is only applicable for developments under SMC’s IWLC review authority (i.e., non-IWLC certified communities). For GP-2 applicability and notification requirements, see General Permit #2.
Is Mitigation Required for IWLC Impacts?
The WDO requires compensatory mitigation (wetland replacement) for IWLC impacts greater than or equal to 0.1 acre to IWLC, including those that are HQARs. However, for single-lot, single-family residences (provided the activity is a single-and-complete project), mitigation is required for wetland impacts greater than 0.25 acre of IWLC or 0.1 acre of IWLC that are HQARs.
Wetland impacts must be replaced at a minimum ratio of 1.5:1 (i.e., one and one-half acres of mitigation for each acre impacted), unless fully certified credits are purchased from a “wetland mitigation bank” (mitigation ratio of 1:1). Impacts to IWLC-HQAR wetlands require a minimum mitigation ratio of 3:1, or 6:1 for forested HQARs. For wetland impacts to open waters (i.e., waters greater than three feet deep) that are not HQAR under Categories I, II, and III, a minimum 1:1 mitigation ratio is required.
All mitigation must take place within Lake County, Illinois, to maintain no net wetland loss of wetlands in the county, with first priority being within the same major watershed (Des Plaines River, Fox River, North Branch-Chicago River, and Lake Michigan). Mitigation may be achieved in several ways:
(1) purchasing acreage credits from a wetland mitigation bank in the same major watershed (note: purchase of credits outside the watershed requires double the replacement acreage). For a map of active USACE-approved wetland mitigation banks in Lake County, Illinois, see Mitigation Banks.
(2) creating new wetlands or enhancing degraded wetlands on the development site or on an approved off-site property within the same major watershed as the wetland impacts; or
(3) purchasing acreage credit in the SMC Wetland Restoration Fund (WRF), which provides a fee-in-lieu option for mitigation (see WRF section below).
Refer to Sections IV.E.3. and IV.E.4. in the WDO for specific requirements concerning IWLC mitigation.
When Can the SMC Wetland Restoration Fund Be Used for Mitigation?
SMC created the WRF as a last option for wetland mitigation, when there are no available wetland mitigation bank credits in the major watershed where the IWLC impacts occur. Note that the WRF can only be used to compensate for impacts to IWLC, not WOUS.
Below are the current WRF in-lieu mitigation fees for each of the four major watersheds in Lake County:
The mitigation replacement ratios for the WRF are the same as the standard mitigation required for IWLC impacts:
- IWLC that are not HQAR – a minimum ratio of 1.5:1 (i.e., one and one-half acres of mitigation for each acre impacted), unless “fully certified” credits are purchased from a wetland mitigation bank (a minimum 1:1 ratio);
- IWLC that are HQAR – a minimum mitigation ratio of 3:1, or 6:1 for forested HQAR; and
- IWLC open waters (greater than 3 feet deep) that are not HQARs – a minimum ratio of 1:1.
Example Calculation for WRF: 1.0-acre impact in North Branch Chicago River Watershed:
- Non HQAR – 1.0 acre impact x 1.5:1 ratio x $129,900 per acre = $194,850 In-lieu fee payment to WRF
- HQAR – 1.0 acre impact x 3:1 ratio x $129,900 per acre = $389,700 in-lieu fee payment
- Non-HQAR Open Water – 1.0 acre impact x 1:1 ratio x $129,900 per acre = $129,900 in-lieu fee payment to WRF.