Section 30 Wetlands

• Library: Environmental Issues and Federal Regulations Affecting Real Estate 2011

Federal law may prevent the development of portions of a site containing wetlands; therefore, it is important to ensure that the Phase I assessment identifies potential wetland areas on a property. Section 404, 33 U.S.C. § 1344, of the FWPCA (Federal Water Pollution Control Act), 33 U.S.C. §§ 1251 et seq., prohibits the “discharge of dredged or fill material” into the waters of the United States without a permit issued by the Corps (Army Corps of Engineers). The permit program established by § 404 (commonly called the 404 Program) has been specifically applied to dredging or filling activities conducted in “wetlands,” which are generally defined by the existence of water‑related criteria—e.g., hydrology, hydrophytic vegetation, and hydric soils. 40 C.F.R. § 230.3. The 404 Program imposes strict limitations on the performance of activities involving dredging or filling in wetlands areas.

Regulations promulgated under § 404 define the term “discharge of dredged material” as “any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States.” 33 C.F.R. § 323.2(d); 40 C.F.R. § 232.3. Similarly, the “discharge of fill material” is simply defined as “the addition of fill material into waters of the United States.” Section 323.2(f); 40 C.F.R. § 232.2. But despite these broad definitions, certain activities are exempt from the 404 Program and thus do not require a permit from the Corps. For example, normal farming activities such as plowing and seeding, the maintenance of existing dams, dikes, and levees, and the construction of certain roads are all exempt from § 404 permit requirements. See 33...