"Isolated wetlands" as we know them might be changing - SSCI Environmental
Last year, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers jointly proposed expanding the interpretation of “isolated wetlands.” The proposed rule is designed to clarify issues raised in Supreme Court decisions that created uncertainty over the definition of jurisdictional waters under the Clear Water Act (CWA). The proposed changes would expand the range of waters that fall under federal jurisdiction.
If the broadening of the definition happens, developers will see increased regulation of properties with isolated wetlands. Some previously “exempt” properties will require permits and more acres of mitigation might be required for full development. On the other hand, if wetlands are left as is (avoiding a permit), less land will be available for development.
Whatever the outcome, it’s important that developers be proactive in meeting CWA requirements, including Section 401 (water quality certification), Section 402 (storm water compliance) and Section 404 permit requirements. Being proactive means hiring competent professionals and actively engaging with the environmental regulatory community in a dialogue from the beginning. Careful planning and patience during development of initial project concepts and/or proposed site selection will prevent many permitting surprises.
Some background: The basic premise of Section 404 of the Clean Water Act stipulates that “isolated wetlands” are subject to U.S. Army Corps of Engineers permitting requirements. If the development activity could affect offsite waters, the act of filling isolated wetlands may still be under the Corps’ jurisdiction because the activity may establish a significant commerce nexus and/or connect the isolated wetlands to nearby offsite navigable waters. The key is to determine if wetlands and/or waters are truly isolated.
Examples of the most common items used to establish a hydrologic connection are presented below. This list is by no means exhaustive, as caveats and special conditions exist for each site.
- Are the wetlands located within the 100-year flood plain? If yes, the wetlands are usually jurisdictional.
- Do the wetlands lie adjacent to, or are they connected to a river, stream, or intermittent stream? If yes, the wetlands are jurisdictional.
- Are the wetlands connected to one of the other types of waters listed in the above items? If yes, the wetlands are jurisdictional.
- Are the wetlands part of a “surface tributary system,” a continuum of wetlands or what appears to be a manmade drainage ditch that is hydrologically connected to a downstream navigable water? If yes, the wetlands may be jurisdictional.
Condition number four catches many developers off guard. “How can wetlands be considered jurisdictional solely because they are connected to a manmade drainage system?” they often ask.
Because many of the man-made drainage systems are rerouted/rechannelized historic waters of the United States, they remain within CWA jurisdiction. The water flows from the wetland into a drainage ditch and eventually into navigable waters. Hydrologic connection has been established, meaning the wetlands are likely jurisdictional.