Legal Ease: Wetlands: Trust but Verify

January 3, 2014 06:36 PM
John Dillard

The following scenario plays out countless times across the country every year: A landowner wants to clear some timber or a meadow for crop production or pasture. He consults with local zoning authorities, the Natural Resources Conservation Services (NRCS), the local soil and water conservation district, and the state environmental agency. These government officials sign off on the landowner’s proposed plan to clear the property. Then, after he begins clearing the property, the Army Corps of Engineers sends a cease-and-desist letter demanding that all land-clearing activity stop because it’s impacting wetlands and streambeds.

You can only imagine the land­owner’s perplexed reaction. A wetland? Really? If that’s the case, why didn’t the previous government officials point it out?

Who is in charge? Wetland regulations are complicated. They have their root in Section 404 of the Clean Water Act, which empowers the Army Corps of Engineers to regulate discharges of dredge or fill material into "navigable waters," which is loosely defined to include many of the wetlands in this country. In most states, the Army Corps of Engi­neers has also delegated some of its wetland regulation authority to state environmental agencies. These states can impose stricter wetland disturbance regulations than the Clean Water Act requires, and they often do. Under this arrangement between and state agencies, it’s difficult to disturb or impact wetlands without running afoul of the intricate web of Army Corps of Engineers and state environmental regulations.

Other federal, state and local government agencies have programs and regulations that implicate wetlands. NRCS and local soil and water conservation districts offer cost-sharing programs for wetland conservation activities. The farm bill’s Wetland Conservation Provisions, com­monly known as "Swampbuster," prohibit participation in USDA commodity programs if a farmer converts wetlands to agricultural use. Many localities also have zoning personnel with responsibilities in wetland preservation.

However, when it comes to compliance with the Clean Water Act’s wetland regulation, the Army Corps of Engineers is the sole authority vested with the power to identify the presence and extent of wetlands on a property. While other agencies might have responsibilities related to wetlands, they defer to the Corps’ identification of wetlands, known as a "jurisdictional delineation." Thus, a land­owner cannot legally rely on non-Army Corps of Engi­neers employ­ees to tell them if wetlands are present on a property. (Note: NRCS is responsible for wetland delineations with regard to Swampbuster provisions, but not the Clean Water Act.)

What is at stake? Wetland identification is a complicated and imprecise science. It’s easy to spot wetlands if you have a readily apparent swamp. However, wetlands can take on numerous forms. According to the Army Corps of Engineers, a wetland contains:

  •  wetland-type (hydric) soils,
  •  wetland-type (hydrophytic) plant vegetation and
  •  the presence of saturated soil or standing water during 5% of the growing season (hydrology).

This identification process can be complicated by excessive rain or drought and is even trickier if you are required to identify wetlands after land has been cleared or graded. The Army Corps of Engineers relies on the 1987 Corps of Engineers Wetlands Delineation Manual and regional supplements as a guide to determine the presence and extent of wetlands.

The Corps and state agencies take wetland disturbance seriously. Section 404 violators are subject to fines of up to $16,000 per day of violation, as well as potential criminal penalties, including imprisonment. Some states might impose even larger penalties. Violators might be required to rebuild impac­ted wetlands or to purchase "banked" artificial wetlands, which can cost more than $100,000 per acre.

To minimize the risk of penalties, it’s best to determine whether wetlands are present before clearing land. While fed­eral, state and local officials offer helpful information, only the Corps of Engineers can determine the presence and extent of wetlands.

John Dillard writes from Washington, D.C. Contact John: 



Twitter: @DCAgLawyer

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