Patrick G. Rowe
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Construction Involving Wetlands - Making Sense of the Permitting Process

May 2011

Published in The Daily Journal of Commerce

Wetlands filter and recharge drinking water, provide water storage for flood protection, protect our coasts from hurricanes and storms, and are habitat to many unique and beautiful plants, birds, and other wildlife.  Because of these important functions, dredging, filling, or other physical alteration of wetlands is subject to a fairly complex set of regulations that seek to strike a balance between protection and use.

Typical activities in wetlands that are subject to regulation include: placement of fill material, alteration of stream banks or stream course, ditching and draining, excavation or dredging of material, bank stabilization, and in-water construction such as piers and stump removal (large land-clearing).  If your construction project involves work in wetlands, there are certain steps that you need to take before you build.  Following is a brief overview of the wetlands permitting process.

Is it a wetland?

The first step that developers and contractors must take is to determine if there is a wetland on the subject site.  Under state and federal law, wetlands are defined as "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 include swamps, marshes, bogs, and similar areas.  Put another way, an area typically constitutes a wetland if the following three indicators are present:

1) wetland vegetation - majority of dominant plant species are adapted for life in saturated soil conditions,

2) "hydric soils" - saturated long enough to develop conditions that favor the growth of wetland vegetation, and

3) wetland hydrology - the area is saturated to the surface in most years (e.g., >50%) for more than 12.5% of the growing season; if water is present less than these amounts, it may or may not be a wetland, depending upon the other parameters.

A wetlands specialist is often needed to determine whether a wetland exists and to delineate its boundaries.  Wetland determinations assess the presence or absence of wetland within a given site.  A wetland delineation is a more detailed study that defines the boundaries of the wetland(s) within a site.

There is a wetland – now what?

If you have confirmed that there is a wetland on the site to be developed, the next step is to determine what laws and regulations apply.

Local Regulation

Many Oregon cities and counties have ordinances restricting development in or near wetlands.  When planning a project in wetlands or waterways, check first with the applicable local planning department to determine what, if any, city or county regulations apply. 

State Regulation

Oregon law requires people who plan to remove or fill material in waters of the state, including wetlands, to obtain a permit from DSL.  A "removal-fill" permit is typically required for:

•           Projects requiring the removal or fill of 50 cubic yards or more of material in waters of the state.

•           The removal or fill of any material from a stream designated as essential salmon habitat, regardless of the number of cubic yards removed.

•           The removal or fill of any material from the bed and banks of scenic waterways, regardless of the number of cubic yards affected.

There are a limited number of activities that are exempt from the requirement to obtain a removal-fill permit, including filling for the purpose of constructing, operating, or maintaining a dam for which a permit has been issued, and removing or filling for forest management purposes.

There are three forms of removal-fill authorizations:

•           Individual Permit: Applies to projects with potentially significant impacts to waters.

•           General Authorization: Provides expedited review process for certain categories of small projects.

•           Emergency Authorization: May be issued in very limited circumstances where there is an immediate threat to public health, safety, or substantial property.

In assessing whether to grant a removal-fill permit, DSL will consider public need for and public benefits of the project, cost to the public if the project is not done, impact on public health and safety, compatibility with local land-use plan, whether there is unreasonable interference with navigation, fishing and public recreational use of the waters, whether the project will increase erosion or flooding, whether there are practical alternatives that have less impact to wetlands, and whether there is appropriate mitigation for all reasonably expected adverse impacts resulting from project development.  If there are practical alternatives that would pose no or minimal wetland impact, DSL will require that those alternatives be pursued.  "Compensatory mitigation" is required for any unavoidable impacts.  Compensatory mitigation is the creation, restoration, or enhancement of wetlands to replace or "compensate" for the wetland area functions lost through the permitted alteration. 

Federal Regulation

There are two sections of the Clean Water Act ("CWA") that are of particular significance to wetlands.

CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands.  Whereas the state / DSL wetland program regulates both excavation and discharge/fill activities, the Corps' wetland program is more limited in that it does not apply to excavation.  In deciding whether to grant or deny a §404 permit, the Corps follows certain guidelines, similar to those considered by DSL, when assessing an application for a removal-fill permit.

Section 401 of the Clean Water Act authorizes EPA to prohibit an activity, including a construction project, if it can impact water quality or have other unacceptable environmental consequences. In most states, including Oregon, EPA has delegated this authority to the state environmental agency.

These two regulatory activities are usually conducted cooperatively through use of a joint application form.  DSL administers a Joint Permit Application with the Corps; only one application is needed to obtain both permits.  However, the application must be submitted to both agencies because projects require separate authorizations from both agencies before proceeding.

The Corps issues general and individual §404 permits.  There are two types of §404 general permits - regional permits and nationwide permits. Both are issued when the proposed activities are minor in scope with minimal projected impacts.  Projects that exceed the limits for regional permits and nationwide permits generally require an Individual Permit.  The Corps' review of applications for Individual Permits is more intense and requires additional detail regarding the proposed project's design, scope, and construction method.

Similar to DSL, the Corps will not authorize activities in wetlands if there is a practicable alternative with less adverse impact on the wetlands. If there is no practicable alternative, wetland impacts that cannot be avoided or minimized require compensatory wetland mitigation.

Bottom line:   If your project involves dredging, filling, or other physical alteration of wetlands, take care to ensure that you follow the appropriate procedures and have the proper permits in place.

Patrick Rowe is a partner with the law firm of Sussman Shank LLP. He is a member of its Business Litigation and Environmental practice groups. Contact him at 503.227.1111 or prowe@sussmanshank.com.

Related Practice Areas

Environmental

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