Wednesday, December 8, 2010

Introduction to Wetland Laws and Regulations

The following article was written for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.

Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.

In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.

The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.

Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.

If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."

Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.

Click here for a more detailed article regarding wetlands regulations.

No comments: