Generally, you cannot build or otherwise impact any wetland. To impact a wetland legally, requires a permit issued by the US Army Corp of Engineers who administer the Clean Water Act in concert with the federal Environmental Protection Agency. So, it is important that you know what, if any, wetlands exist on your property before planning any development or building. To do so, you engage a Wetland Consultant who will walk your property, review soil maps, and delineate the area of wetlands.
There are two wetland classifications. It could either be jurisdictional, that is governed by the USACE, or non-jurisdiction in which case, you need to determine whether any other state agency has jurisdiction. At this point, you only have the opinion of a consultant, which doesn’t carry any governing authority. In order to obtain the agreement of the USACE your consultant will file a request for Jurisdictional Determination. Basically, the consultant and a USACE rep will review and agree upon the delineation line. The delineation is represented upon a survey and is binding upon the USACE for five years. If your development or building is not completed within that time, you can apply for an extension. If however, you fail to do so, you will have to repeat the process and don’t be surprised if the delineated line changes. After all we are dealing with nature, which may change water patterns, and governments, who may change definitions.
What do you if your plans impact a delineated wetland? There is a Nationwide Permit 29 (for residential subdivisions) which allows up to 1/2 of an acre to be impacted. Typically, this is for roads, utilities or access to building lots. Rarely it is permitted to create a building area. Mitigation for impacting the wetland is required. At one time, mitigation could be done on site with the use of buffers. But as we said, governments change definitions, and now the only mitigation available is a financial payment. And it could become very expensive, upwards of $7,500 per credit and the USAC will tell you how many credits they deem necessary. The number of credits depends upon the quality of the wetland being impacted.
If your impacts are greater than ½ acre, then you need to secure an individual permit. This is a lengthy (years) and costly endeavor with no assurance of success.
If the wetland is non-jurisdictional, many states have legislated companion law and rules. The process to obtain permits to impact non-jurisdictional wetlands vary from state to state.
Separate from identifying wetlands, it is now important to understand what is below the surface (such as competent granite) as the subsurface conditions may dramatically affect your development budget or land plan. But that’s for a future blog.
