Whether you’re planning new construction or the expansion of an existing facility, special consideration must be taken to build on a wetland while maintaining compliance. Wetlands provide valuable habitat for plant and animal communities, and they serve as a natural filter for water flowing into water bodies and groundwater. They can also act as a buffer during storm events, helping to soak up heavy precipitation or rising water levels to prevent flooding and erosion. Use the tips below to learn how to identify a wetland, how to know if a wetland is jurisdictional, and what to do if you’re planning construction near a wetland area.
Legal Protection of Wetlands
The Environmental Protection Agency (EPA) has several programs in place to safeguard wetlands in the United States. Wetlands are protected by Section 404 of the Clean Water Act and Section 10 of the Rivers & Harbors Act, which is why wetland permits are often referred to as Section 10/404 permits. Section 401 of the Clean Water Act also gives states the authority to issue a Water Quality Certification for any project that requires a federal permit, to ensure that the project will not violate state water quality standards.
New Construction Near a Wetland or the Expansion of a Facility
How do you know if there are wetlands within your project area? Sometimes it’s easy to tell because the land’s characteristics are typical of wetlands: ponds, low boggy areas, cattails, etc. Not all wetlands look like this, however:
Some look more like this:
According to the EPA, “Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas” (source).
So how can you know if a site contains a wetland before moving forward with construction?
- Wetlands Mapper: The U.S. Fish & Wildlife Service’s Wetlands Mapper is a good screening tool, but it does not confirm whether or not an area is definitely a wetland. It’s useful as a jumping-off point.
- Wetlands Survey: A regulator may request a wetland survey due to a site’s proximity to a nearby waterbody, and you can hire an experienced environmental consultant to conduct the survey. What will the consultant look for? Wetland scientists have training in identifying plant communities that prefer wet, saturated soils to high, dry upland soils, and they can use soil science to determine if soils stay saturated for long periods of time throughout the year.
For an area to be identified as a wetland, it must have the three following traits:
- Hydrophytic Vegetation: Plants that prefer to have their roots in wet soils
- Hydric Soils: Soils that show evidence of being saturated for long portions of the growing season
- Wetland Hydrology: Water conditions that demonstrate that an area stays inundated for long periods, such as high water tables, mud cracks, drainage patterns, and crayfish burrows
Identifying Jurisdictional Wetlands
If you do have a wetland on your project site, the next step is to determine if it is jurisdictional. That is to say, does the government have regulatory authority over what happens to the wetland?
For the state or federal government to have a say, the wetland must have “relatively permanent” connectivity to navigable waters of the United States (WOTUS). This is a bit of a hot topic at the moment, and lots of changes are currently happening with the legislation – but essentially, can a surface connection be made between the wetland and a waterbody that is navigable? The wetland does not have to connect directly; it can be adjacent to a small flowing creek, for example, that joins a larger waterbody downstream.
Isolated wetlands that do not have surface connections to any waters, such as pasture ponds, lagoons, or sinkholes, are not jurisdictional. Likewise, manmade ditches are also not regulated, unless they used to be streams or creeks and have been “improved” by urbanization for drainage. Agricultural lands that stay wet for particular types of crops (such as rice fields, crawfish ponds, or cranberry bogs) are also not considered jurisdictional wetlands.
If your consultant identifies a wetland that is jurisdictional, you can hire that company to complete a wetland delineation, where the consultant will identify and mark the edges of the wetland (either with survey stakes/flags, GPS, or both, depending on regulatory requirements in your area and your preferences). They will also provide a report that can be submitted to the U.S. Corps of Engineers (USACE) and/or the local state governing authority.
If You’re Planning Constructoin Near a Wetland, andit is a Jurisdictional – What Next?
If your construction near a wetland is jurisdictional, you have three options:
If you can complete your project without disturbing the wetland area, a Section 10/404 permit is not required from the state or USACE. However, your Stormwater Pollution Prevention Plan (SWPPP, required for a land disturbance permit) should include best management practices (BMPs) to prevent the work from impacting the wetland.
If the project can be designed so as to impact the smallest portion of the wetland possible, a permit will be required. However, there are often General Permits (for example, Louisiana offers a variety of General Permits) and Nationwide Permits that allow for a faster permitting process if a project affects less than a specified number of acres or linear feet of the wetland or waterbody.
If impacts to an existing wetland cannot be avoided, you can include plans to mitigate for those impacts in your permit. This can include building a new wetland somewhere else on the property (or on another nearby property that’s in the same watershed) or buying credits with a mitigation bank. To determine the size and type of mitigation, you will need to coordinate with your regulatory project manager, who will confirm the type of wetland present and assign a value to it. This will ensure that the mitigation project is equal to or greater in value than the wetland that was destroyed.
Wetland permitting is not necessarily a fast process. In fact, it can often take months, and some large projects may take up to a year to get everyone in agreement with permits in hand. So if you suspect that a wetland or waterbody may be present in or near your project area, contact an environmental consultant for a site visit as soon as possible to minimize the likelihood of delays on your project.
Do you have a potential wetland on your site? If you’re planning construction near a wetland, give Environmental Works a call! We have in-house wetland scientists with over a decade of experience ready to help. You can contact EWI online or call 417-890-9500 for more information.