WETLANDS: WHAT DEVELOPERS SHOULD KNOW

Kenneth M. Klemow, Ph.D.

Department of Biology, Wilkes University, Wilkes-Barre, PA
Prepared for the
Northeast Pennsylvania Business Journal
January, 1991 (updated version)

For centuries, wetlands have been regarded as mosquito-infested waste areas with little practical value. Massive programs were undertaken to drain and fill wetlands to make them more "productive."

We have turned our views on wetlands completely around within the past twenty-five years. Now, wetlands are considered be valuable environmental resources deserving protection. As a result, stringent laws are in effect that regulate development in wetlands. Failure to abide by those regulations can have severe consequences for uninformed or unscrupulous developers. Violators face heavy fines, prison sentences, and costs associated with restoring wetlands back to their original condition. Since the stakes are so high, every property owner should understand how wetlands are legally defined and which activities in wetlands are regulated.

The purpose of this article is to provide some basic, useful information on wetlands for property owners and developers. The topics will include an overview of some of the general concepts and terminology regarding wetlands in northeastern Pennsylvania, the values of wetlands and rationale for their protection, some of the regulations about which developers should be aware, how wetlands are legally defined, and a few comments about the role of consultants in wetland delineation. Additional information is available from the Environmental Protection Agency (EPA), District Offices of the U.S. Army Corps of Engineers (Corps), and the Pennsylvania Department of Environmental Protection (DEP).

Developers often ask, "What exactly is a wetland?" Not surprisingly, the answer can be complex because wetlands are a part of our inherently complex natural environment. At first, one may suspect that wetland would be any area that is typically wet underfoot. Thus, wetlands would include areas of shallow open water, as well as vegetated areas like springs, bogs, marshes, and swamps. That definition was acceptable until the early 1970s, when interest in wetland conservation and protection increased.

At that time, the four federal agencies involved with wetlands protection (the EPA, the Corps, the Soil Conservation Service (SCS) and the Fish and Wildlife Service) each had their own definition as to what constituted a wetland. Many state and local agencies also had their own criteria.

The essential problem behind developing a straightforward definition is that wetlands are inherently transitional areas between open water and dry land. Thus, wetlands blend into uplands (non-wetlands) and the distinction between wetlands and uplands is often not readily apparent, either conceptually or in the field.

A consistent definition of a wetland was developed during a meeting of the four federal agencies early in 1988. According to that definition, a wetland is any area whose soil is covered with standing water or saturated with sufficient frequency and duration to allow special water-tolerating plants to grow there. Specifically, if the water table is eighteen inches or less from the soil surface for at least one week during the growing season, then the site is a wetland.

Developers in Pennsylvania should pay very close attention to that definition because many local areas may appear to be dry upland at first glance, but are really wetland. The most problematic sites are wet for a few weeks in the late spring, due to snowmelt, but then dry out throughout the summer. Thus, it is dangerous to assume that an area is not a wetland merely because it is dry underfoot.

Interestingly, any area can change from being an upland to a wetland (or vice versa) if the hydrology (the pattern of water flow) changes. Thus, activities on neighboring properties that lead to increased flooding on your property could change your upland to a wetland.

Since wetlands must support water-tolerant plants, they are considered to be different from deepwater habitats like lakes and rivers. In southern Pennsylvania, wetlands are generally found alongside those deepwater habitats, and cover only about 2% of the land surface. In northern Pennsylvania, wetlands not associated with deep water are very common, and total coverage can exceed 25% in some places.

With that general overview in mind, one can ask: "What good are wetlands, and why should they be protected?" Research conducted within the past thirty years has shown that wetlands serve several beneficial roles. First, wetlands act as a sponge, reducing the chance for downstream flooding in wet times, and providing needed water for adjacent areas during drought. Second, wetlands adjacent to open water dissipate wave energy and reduce the chance for erosion. Third, wetlands serve to purify groundwater by trapping sediments and by filtering harmful chemicals from the water. Indeed, artificial wetlands are now being created to treat water pollution from agricultural runoff, acid mine drainage and even municipal and industrial waste. Fourth, wetlands serve as habitat, feedling areas, and breeding areas for fish, waterfowl, and many other species of large and small wildlife. In many cases, that wildlife provides income for trappers and hunters, as well as the commercial enterprises that support them. Wetlands are also home to commercially valuable crops such as blueberries, cranberries, and wild rice, and to rare species whose value we often have yet to realize. Finally, wetlands provide recreation and tourism value to an area; a feature that is often underappreciated.

Despite those values, wetlands have been lost at a very high rate during the past several decades. A 1984 report issued by the U.S. Office of Technology Assessment estimated that the continental United States had about 150 million acres of vegetated wetlands in the late 1700s, while today we have only 80 million acres, one-third of which are badly degraded by toxic substances. Much of that loss occurred during this century, particularly in the 20-year span between 1954 and 1974 when we lost 11% of our wetlands. Pennsylvania is in no way different from other states, with 1,200 acres destroyed each year.

Human activity has reduced wetland acreage in a number of ways. Historically, wetlands were drained to improve fields for agriculture. During the past half-century, many wetlands were filled to facilitate residential and commercial development. Many other wetlands have been converted into open-water habitats like lakes and ponds. While such conversions enhance the habitat for a few species of birds and fish, they destroy most of the other functions of wetlands. Thus, the creation of open water from wetlands is now strongly discouraged.

Recognizing the loss of this valuable natural resource, the Federal Government passed legislation designed to protect wetlands from further destruction. The backbone of this effort is Section 404 of the Clean Water Act, originally passed in 1972 (although wetlands protection was not the original intent of the Act). Section 404 prohibits the discharge of dredge or fill material into wetlands without a permit issued by the Army Corps of Engineers. At first, the Corps was reluctant to enforce Section 404, but subsequent court decisions mandated the Corps to be much more stringent.

Developers should be aware of several aspects of Section 404. First, there is no minimum size requirement for wetlands covered by Section 404. Thus, a small cattail depression the size of a card table would qualify as a wetland.

Second, Section 404 regulates only filling activities. Other activities like draining and excavating wetlands are not regulated at the federal level. In addition, the regulations allow the Corps to issue twenty-six categories of General Permits allowing a variety of activities like continued agriculture, minor road crossings, and discharges into small, isolated wetlands. For those reasons, people advocating strict wetlands protection are unhappy with Section 404.

Third, different regions of the U.S. are under the jurisdiction of different Corps offices. For example in eastern Pennsylvania, areas in the Susquehanna River watershed are under the jurisdiction of the Baltimore office, while those in the Delaware watershed are under the Philadelphia office. While the policies of the various offices are generally consistent, they sometimes differ. Thus, an activity that might win approval in one district might be denied in the other.

Finally, developers should bear in mind that Section 404 was written to promote interstate commerce. In the view of the legislators and proponents for the law, that interstate commerce would include activities such as waterfowl hunting, trapping and tourism. Thus, any site that is a potential home to a mallard or a muskrat could be viewed as being valuable to interstate commerce.

Layered on top of the federal regulations are laws adopted by states, counties and local governments. States vary considerably in the strictness of their wetlands laws. Most developers know, for example, that wetland protection laws have been more stringent in New Jersey than Pennsylvania.

In Pennsylvania, Section 105 of the Dam Safety and Encroachment Act addresses wetlands. Section 105, which is administered by the DEP, mandates that a permit application be filed for dams, water obstructions and encroachments. However, the jurisdiction of the DEP has been broadened to oversee all activities occurring in wetlands. Thus, non-filling activities such as draining and excavating wetlands require a permit.

To facilitate the process by which a property owner applies for a permit, the Corps and DER have developed a joint application. In filling out the application, the developer must provide essential information about the nature of the project, complete with sketches. After the application is submitted, the Corps and DEP conduct public hearings on the project, and solicit input from other agencies like the EPA and the Fish & Wildlife Service. Afterwards, the Corps and DEP each deliberate and decide whether to approve or reject the application. You need approval from both agencies.

One of the primary considerations for both agencies is water dependency. Proposed projects that impact wetlands must depend on those wetlands for their success. Thus, a proposed shopping mall would not qualify because it does not need to be built in a wetland. There are generally ample upland sites in which a shopping mall can be sited. Thus, any developer planning to purchase a lot for building should ascertain whether it contains wetlands.

Property owners should also be aware that development in a site containing wetlands can be blocked, even though a local zoning board provided its approval. Sadly, many local zoners are ignorant of how wetlands are legally defined and the laws that bear upon wetlands.

Despite the clearly established laws and procedures regarding wetland regulation, enforcement can be difficult. Often, sites are investigated by the DEP or Corps due to information supplied by neighbors or other concerned citizens. Certainly, many violations go unreported. Property owners who violate wetlands regulations must realize that the DER or Corps can pursue a past violation, even one that is five years old.

Penalties for violating Section 404 or 105 regulations can be severe. Depending upon the acreage affected, fines totaling hundreds of thousands of dollars can be (and have been) levied. Prison sentences ranging from several months to several years are given to property owners who flagrantly violate Federal and State wetlands laws. In addition, property owners are required to fully restore their wetlands, often at a cost exceeding $20,000 an acre.

Since the laws are so explicit, it stands to reason that the legal definition of what does and does not constitute a wetland is clearly spelled out. To that end, the Corps and other federal agencies have developed a mandatory definition of wetlands and a procedure for how they are to be delineated. That information is detailed in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, published in January 1989. The DEP also follows the Federal Manual.

The jurisdictional definition focuses on three general features of the site: the soils, the hydrology, and the vegetation. Since all three must be taken into account before a site is determined to be a jurisdictional wetland or an upland, any determination based on only a single feature is not valid.

The presence of wetland soils is not difficult to determine in the field. Many wetland soils have a thick layer of slowly-rotting organic material on the surface. Others have a subsoil that is gray or blotchy due to the lack of oxygen.

Wetland hydrology is somewhat more difficult to assess, especially if the determination is done in the late summer, fall, or winter. Still, nature provides clues that indicate wetland hydrology. Examples include debris from past flooding, water marks on tree trunks, and blackened leaves on the soil surface.

By far, the most difficult aspect of wetland determination is the vegetation. The general idea is that many plant species like cattails are restricted to wetlands, whereas many others like red maple can grow in both wetlands and uplands. To determine the presence of wetland vegetation, one must first identify the most important species on the site. While a few plant species can be easily identified, many require some knowledge of botany. Unfortunately, many wetland plants like grasses, sedges, and plants in the aster family are extremely difficult to identify to species, and require considerable expertise in plant taxonomy to do so. Identification is also very difficult in the late fall, winter and spring. Once the dominant species are finally identified, the determiner consults a table indicating how often each species is found in wetlands. If most of the species in the plant community are normally found in wetlands, the site is deemed to have wetland vegetation.

Any property owner suspecting that their site contains wetlands should arrange to have the site visited by someone able to conduct a determination (as to whether wetlands are present), and a delineation (in which the wetland-upland boundary is identified). At present, personnel associated with the DEP or Corps do not provide that service. Instead, determinations and delineations are performed by consultants.

Property owners should be aware that Pennsylvania does not maintain a certification program for wetland consultants. Thus, no mechanism exists to ensure that all wetland consultants are fully qualified. A competent consultant should know the prevailing wetland soils of the region and the relevant principles of hydrology, and must be able to identify every plant species that potentially grows in local wetlands. A qualified consultant should have completed a formal college course in wetlands, or a training course on wetland delineation, such as the one offered nationwide by The National Wetlands Science Training Cooperative. A smart developer should inquire about the credentials of any wetlands consultant before retaining that person.

Property owners who hire a consultant should understand that the consultant acts as an impartial umpire, making a determination according to the evidence available. Therefore, property owners should provide as much information about the property as possible, including any information on past uses. The property owner should give the consultant enough leeway to gather any other information that might be available, especially from neighbors and governmental agencies. Property owners should also recognize that some sites may require several visits at different times of the year, due to hydrologic or vegetation patterns that are impossible to assess during a single visit. Finally, it is not in the property owner's best interest to ask a consultant to "shade" the findings by calling a site an upland when it is really a wetland. When such cases are discovered, both the property owner and the consultant are held liable.

Many property owners are aware that the regulations allow for wetland "mitigation", in which new wetlands are created to replace old ones. In the past, a developer would be allowed fill a wetland by agreeing to mitigate. Due to the failure of many previous attempts at mitigation, the DEP and Corps use mitigation only as a very last resort and actively discourage applicants from that option.  Moreover, mitigation wetlands can be costly to construct, and require monitoring for a period of several years.

In conclusion, the possible presence of wetlands on a proposed building site must be an important consideration for any property developer. The consequences for violating state and federal wetlands regulations can be severe. While many aspects of the laws can be criticized, they are in place and unlikely to change much in the foreseeable future. Therefore it makes good business sense to understand them and abide by them.

Dr. Klemow is a Professor at Wilkes University, where he holds a dual appointment in the Departments of Biology and Earth & Environmental Science. He is also the Past-Chairperson of the Ecological Society of America's Education Section.


This page posted and maintained by Kenneth M. Klemow, Ph.D., Biology Department, Wilkes University, Wilkes-Barre, PA 18766. (570) 408-4758, kklemow@wilkes.edu.