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 signicant compliance challenge for the regulated community. In
addition, certain aspects of the regulatory regime, including the fractured rulings of t he 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
scientic structure borne of regionally diverse wetland ecosystems a nd a jurisdictional structure heavily
dependent on scientic 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 specic situation, this chapter seeks to identify some of the
specic practice pitfalls they may confront. us, this chapter does not present any signicant new infor-
mation, but seek s to both stitch together some of the seemingly disparate elements presented so far and
highlight some of the particu larly nettlesome issues currently facing t he practitioner in the eld.
Any group of wetlands lawyers would have dierent 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 a s 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 d ierences
of opinion on the wetland boundaries or on wet land jurisdiction. For other waters of the United States,
such as streams, delineation can be very dicult and jurisdictional determinations can be complex. is is
particularly tr ue 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 t hat discretion, the Corps has fl exibility
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: Law yers 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, rat her than fight, but the lawyer needs t o make
sure that the record is clear in case there is a l ater dispute.
Page 230 Wetlands Deskbook, 4th Edition
A. The Moving Goal Posts of Delineation
1. Updated Regional Manuals
As d iscussed in Chapter 1.A, supra , EPA and the Corps both use the 1987 Corps Manua l 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 Pacic Islands, Mid West, Northcentral and Northeast, a nd Western Mountain
regions.1 ese regional supplements provide specic 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 Manua l and any regional supplement.
us, understa nding the general practices under the 1987 Manual does not aord a practitioner su f-
cient information to navigate the delineation process; an understanding of the regional-specic 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—modied more frequently. ey are a lso all not
modied contemporaneously. For example, the Northcentral and Northeast regional supplement2 was
updated in Januar y 2012, the Western Mountains, Valleys and Coast regional supplement3 was modied
in May 2010; and the Alaska Region was cha nged in September 2007.4
Finally, practitioners should note that it may be dicult to determine precisely what manual applies in a
specic geographic area. First, the borders between regional lines follow ecological, not political or admin-
istrative boundaries.5 erefore, simply examin ing a map could be mislead ing and eld investigation may
be required. In transitional areas, it is highly recommended to understand specically in which region a
particular wetland is located; some parcels of property can actually be covered by two very dierent supple-
ments (such as where the Arid West and Western Mountain regions abut).
Another similarly confounding variable is that the locations of t he specic 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 Mex ican 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 identication of the correct regional supplement, critical to a proper delineation, can be dicult.
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 t he ground, but it is up to the lawyers to work on what features are
pertinent to “signicant nexus” jurisdiction. Most cha llenging is how to describe “signicance,” par ticu-
larly a s the standard continues to evolve. Similarly, should t he 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 w ill
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 consultant s may not be sen sitive to all of t he post- Rapanos
jurisdictional issues. They may need assistance to note whether certain features are or are not
“significant.” The “Rapanos” s heets in a wetland delineation are the found ation for jurisdiction
(including any appeals) and nee d careful review by counsel.
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