Practical Tips and Pitfalls in Wetlands Law

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 229-246

Page 229

Chapter 10

Practical Tips and Pitfalls in Wetlands Law

As discussed in the rst nine chapters, federal and state wetland laws present an overlapping patch-

work of regulation creating a signicant compliance challenge for the regulated community. In

addition, certain aspects of the regulatory regime, including the fractured rulings of the U.S.

Supreme Court and the agencies’ heavy reliance on variable implementation mechanisms at the regional

level, serve to further complicate the regulatory structure. ese regulatory challenges overlay a complex

scientic structure borne of regionally diverse wetland ecosystems and a jurisdictional structure heavily

dependent on scientic causation.

us, even with a thorough understanding of the various elements of wetland law, cobbling together

a comprehensive understanding of the whole can be a challenge. Understanding that practitioners fac-

ing real-world permitting and compliance situations may nd it challenging to sift through the last nine

chapters and piece together guidance for their specic situation, this chapter seeks to identify some of the

specic practice pitfalls they may confront. us, this chapter does not present any signicant new infor-

mation, but seeks to both stitch together some of the seemingly disparate elements presented so far and

highlight some of the particularly nettlesome issues currently facing the practitioner in the eld.

Any group of wetlands lawyers would have dierent ideas of what should be included in this chapter,

based on their experience and knowledge. is represents our best judgments; it may inspire others to share

their practical experience as well.

I. Identifying Waters of the United States

In most instances, wetland delineation is a job for good wetland consultants rather than lawyers. Delinea-

tion should be based on science and eld conditions. And in most instances, there are not big dierences

of opinion on the wetland boundaries or on wetland jurisdiction. For other waters of the United States,

such as streams, delineation can be very dicult and jurisdictional determinations can be complex. is is

particularly true in the arid western United States, but the situation arises in other locations as well.

Practice Tip: We are sure that our clients get sick of hearing us say, “the Corps has broad

discretion” as we work through a permit process. With that discretion, the Corps has f‌lexibility

regarding information requests, evaluations, permit terms, and mitigation. Clients will ask, “Can

the Corps make me do that?” Given the breadth of the public interest analysis, if there is a mean-

ingful relationship to the §404 permit, the answer often is “Yes.”

Practice Tip: Lawyers should review delineations to assure that the consultant is not conceding

jurisdiction or conceding the presence of wetlands inappropriately. The client may be willing to

seek a permit even for nonjurisdictional areas, rather than f‌ight, but the lawyer needs to make

sure that the record is clear in case there is a later dispute.

Page 230 Wetlands Deskbook, 4th Edition

A. The Moving Goal Posts of Delineation

1. Updated Regional Manuals

As discussed in Chapter 1.A, supra, EPA and the Corps both use the 1987 Corps Manual for wetlands

delineation. However, the Corps has released regional supplements to the 1987 Manual for the entire coun-

try: the Alaska, Arid West, Atlantic and Gulf Coast, Caribbean Islands, Eastern Mountains and Piedmont,

Great Plains, Hawaii and Pacic Islands, Mid West, Northcentral and Northeast, and Western Mountain

regions.1 ese regional supplements provide specic criteria for wetland delineation (e.g., depth and dura-

tion of groundwater measurements or temporal variations in hydrophytic vegetation). As a practical matter,

delineation of wetlands must follow the Corps Manual and any regional supplement.

us, understanding the general practices under the 1987 Manual does not aord a practitioner suf-

cient information to navigate the delineation process; an understanding of the regional-specic practices

is also required. In fact, with regional supplements now in existence for every region in the country, relying

on the 1987 Manual alone is guaranteed to result in an incomplete, and possibly erroneous, analysis.

Moreover, regional supplements can be—and are—modied more frequently. ey are also all not

modied contemporaneously. For example, the Northcentral and Northeast regional supplement2was

updated in January 2012, the Western Mountains, Valleys and Coast regional supplement3 was modied

in May 2010; and the Alaska Region was changed in September 2007.4

Finally, practitioners should note that it may be dicult to determine precisely what manual applies in a

specic geographic area. First, the borders between regional lines follow ecological, not political or admin-

istrative boundaries.5 erefore, simply examining a map could be misleading and eld investigation may

be required. In transitional areas, it is highly recommended to understand specically in which region a

particular wetland is located; some parcels of property can actually be covered by two very dierent supple-

ments (such as where the Arid West and Western Mountain regions abut).

Another similarly confounding variable is that the locations of the specic regions are not completely

intuitive. For example, portions of the Western Mountains, Valleys and Coasts region are found in South-

ern New Mexico, within 100 miles of the Mexican border; portions of the Eastern Mountains Region are

in Oklahoma, more than 500 miles to the west of the Midwest Region states of Ohio, Indiana and Illinois.

Adequate identication of the correct regional supplement, critical to a proper delineation, can be dicult.

B. Legal Jurisdiction

e post-Rapanos elements of jurisdiction are likely to remain a law yer’s issue for years to come. e con-

sultants need to identify features on the ground, but it is up to the lawyers to work on what features are

pertinent to “signicant nexus” jurisdiction. Most cha llenging is how to describe “signicance,” particu-

larly as the standard continues to evolve. Similarly, should the agencies’ proposed jurisdictional rule be

nalized as proposed, consultants will face the added challenging task of identifying variable “oodplains”

and “riparian areas,” as well as living with the overall implementation of a new regulation that surely will

see litigation.

1. See generally http://www.usace.army.mil/missions/civilworks/regulatoryprogramandpermits/reg_supp.aspx.

2. Available at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/NCNE_suppv2.pdf.

3. Available at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_nalsupp.pdf.

4. Available at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/erdc-el_tr-07-24.pdf.

5. See http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/map_del_region.pdf.

Practice Tip: Even good wetland consultants may not be sensitive to all of the post-Rapanos

jurisdictional issues. They may need assistance to note whether certain features are or are not

“signif‌icant.” The “Rapanos” sheets in a wetland delineation are the foundation for jurisdiction

(including any appeals) and need careful review by counsel.