Whatever region of the United States you’re in, wetland consultants are a dime a dozen. This includes the one-man show all the way up to a Fortune 500 company. All promise the same things: to complete your project in a timely fashion and under budget with an approved jurisdictional determination (JD) and/or wetland permit from the U.S. Army Corps of Engineers (Corps). But do all consultants yield the same results?
Wetland consultants are hired by developers, property owners, engineering firms, commercial and industrial clients to provide a number of services, including wetland delineations, wetland permitting and mitigation assistance. Wetland consultants should be intimately familiar with the requirements of Sections 10 and 404 of the Clean Water Act (CWA) when it comes to impacts to potential wetlands and Waters of the U.S. (WOTUS). A qualified wetland consultant should be knowledgeable of state and locally regulated programs who also have jurisdiction over wetlands and WOTUS. For example, the Coastal Zone of Louisiana includes jurisdiction by both the Louisiana Department of Natural Resources (LDNR) and the Corps. Corresponding agencies to consider also include individual coastal management agencies within certain southern parishes.
Federal regulations defining WOTUS have recently changed and affected which streams and wetlands are regulated under the CWA. A new administration means those rules may be revised. The practical implication for industry and development is that some wetlands and waterbodies on a given site are regulated by the Corps and Environmental Protection Agency (EPA) under the CWA, and some are not. Wetlands and waterbodies may or may not simultaneously be regulated by state statutes, and sometimes, local ordinances. The Corps of Engineers (and where relevant, state agencies), must look for evidence of impact sequencing, namely, an effort to avoid and minimize impacts to wetlands in a permit application before being able to issue a permit for unavoidable wetland impacts. A competent wetland consultant can help navigate these regulations and provide a comprehensive wetland report to facilitate efficient permitting for wetland impacts.
The right consultant will also work interactively with a client to help them understand permit requirements and suggest ways to design or reconfigure proposed projects for efficient permitting. If a permit application doesn’t show a good-faith effort to minimize or avoid impacts and explain why proposed impacts are unavoidable, it may be rejected. If that happens, a project redesign could be costly and add months onto a project schedule and delay construction.
Additionally, final determination of regulatory status is made by regulatory agencies (such as the Corps), but for an agency to make a determination, they will need a clear description of all wetlands with reference to appropriate technical criteria. For example, defining a wetland depends on specific criteria for vegetation, hydrology, and soils. The next step to determine if a wetland is regulated under the CWA is to consider the context of that wetland. If it formed incidentally in a low area that was abandoned after mining an upland, it would not be a jurisdictional wetland under the Navigable Waters Protection Rule that took effect in June 2020. Alternatively, if a naturally occurring wetland is adjacent to a stream that is a tributary to a downstream navigable water, that wetland is regulated if the stream’s flow regime is perennial or intermittent. If the stream is an ephemeral stream, the wetland is not regulated under current federal regulations. The determination of whether a stream is perennial, intermittent, or ephemeral relies on another suite of technical criteria. The right consultant can properly execute a wetland delineation and an appropriately written delineation report – two elements that are critical for timely determination of regulatory status.
The consultant is expected to compile a delineation report for submittal to the Corps and/or other jurisdictional agencies. Delineation reports may be used by state agencies as well as the Corps as documentation of state waters or wetlands in project areas. The wetland report includes all the data that was collected during the site visit and summarizes the findings of the wetland delineation. In general, the contents of a wetland delineation report include a discussion on wetland hydrology, vegetation, soil descriptions, the type/acreage of wetlands/WOTUS that will be impacted, and supporting documentation such as wetland data sheets, figures and maps. However, some Corps districts have their own requirements for wetland delineation reports and/or for how data is collected in the field. For example, the New Orleans, Omaha, St. Paul and Galveston districts have well-defined requirements that need to be followed before any wetland report is reviewed.
Wetland consultants only partly rely on what’s readily available in terms of published online data. These could include historical topographic maps, National Wetland Inventory (NWI) maps, infrared and historical aerials, light detection and ranging (LiDAR) data, and other data published by the U.S. Geological Survery (USGS), the National Resource Conservation Service (NRCS) and the U.S. Department of Agriculture (USDA), to name a few. It is easy to access some wetland and stream maps online through the National Wetland Inventory, by locating hydric soils in the Web Soil Survey, or streams via the National Hydrography Dataset. However, these map products are created through remote sensing and interpretation of aerial photographs and topographic maps. While they are good resources for desktop planning, they cannot substitute for an onsite wetland delineation conducted by an experienced wetland consultant.
The delineation process doesn’t stop when a wetland report is complete. A wetland consultant will help shepherd a delineation through a jurisdictional determination process with the Corps and other local and state agencies. As mentioned previously, some wetlands are not regulated under the CWA. A Preliminary Jurisdictional Determination (PJD) is completed when the professional opinion of the wetland consultant is that all delineated wetlands and streams are jurisdictional under the CWA. It is the fastest determination by the Corps. An Approved Jurisdictional Determination (AJD) is recommended when some or all the delineated wetlands or streams are not jurisdictional. Although the Corps has the final say on jurisdictional status when they issue a jurisdictional determination, a good wetland consultant can help facilitate that determination by recognizing the relevant technical criteria in the field and appropriately documenting them in a delineation report.
In summary, it is important that a wetland consultant be well-versed in both education and experience conducting wetland delineations, and be very savvy about what is required by the local, state and federal regulatory agencies as well. The wetland consultant should have positive relations with personnel from all the agencies involved with the review process. Braun Intertec has numerous wetland biologists with over 50 years of combined service and has experience working in the following states with state-level wetland and waterbody regulation: Louisiana, Washington, Minnesota, Wisconsin, and Florida. Braun Intertec also has experience working in the following states where no state-level wetland regulations but waters of the state are regulated: Texas, Georgia, Virginia, Iowa, Illinois, North Dakota, Arizona.
Want to know more? Register for our webinar, Wading through the Swamp: Wetlands, Endangered Species, and Environmental Assessments, on February 25th with wetlands and ecology specialists, Daniel DeJoode, Ph.D. and Brady Turk. They will discuss how to navigate these regulatory areas to propel you to successful project completion.