Finding the ideal site is becoming increasingly difficult as communities become more developed and the regulatory environment becomes more restrictive.
One of the issues that has changed over the last five years, and is continuing to get more restrictive, is wetlands permitting. The rules governing how wetlands and other waters like streams, lakes and ponds may be impacted are systematically becoming more and more restrictive.
Have you ever driven out on a site that is being farmed, only to find out in the due diligence effort that the area is a jurisdictional wetland?
The responsibility for regulating wetlands lies with the U.S. Army Corps of Engineers. The criteria for designating and identifying wetlands became even more restrictive in 1996 when the Natural Resources Conservation Service was charged with identifying agricultural wetlands.
Through a memorandum of agreement, the Corps, the Conservation Service, the U.S. Fish and Wildlife Service, and the Environmental Protection Agency must coordinate their wetlands responsibilities.
Soil type is one criteria for wetlands designation. The other two parameters are hydrophytic vegetation and water features.
All three of these parameters must be present, under normal conditions, for a site to be considered a jurisdictional wetland. In the event two of the three parameters are present, often one can assume the third is present.
Under the federal rules, certain jurisdictional wetlands can be filled or otherwise encroached upon, provided the applicant has followed federal guidelines.
First, the applicant must try to avoid discharges into waters of the United States. Second, the applicant must minimize those impacts which cannot be avoided. If these guidelines have been followed and there are still impacts, the applicant will often be required to provide mitigation.
| Oftentimes, a buyer will ignore wetlands
permitting early on in the process, only to
discover down the road that permitting limitations
can cost a lot of time and money. |
Prior to February 1997, any wetland impacts under 10 acres were eligible for authorization from the Corps through the Nationwide General Permit program, specifically for headwaters and isolated waters. Anything greater than this amount had to have an Individual Permit.
The threshold was lowered to three acres in February of 1997 and an additional limit of 500 linear feet of stream impacts were included.
As a result, many projects that previously would have been eligible for a General Permit now require an Individual Permit.
Even as you read this, the Corps is proposing to issue five new Nationwide General Permits, modify six existing permits, and include conditions that may make the process more restrictive.
To compound the difficulty of the process, some states have chosen to enact legislation and regulations that are more restrictive. Several states have even chosen to enforce zero encroachment policies, meaning that no wetlands may be disturbed or mitigated.
This position is normally independent of the quality of the wetlands, and can be frustrating if the area has been farmed for years.
Oftentimes, a buyer will ignore wetlands permitting early on in the process, only to discover down the road that permitting limitations can cost a lot of time and money.
Including wetlands permitting in your early planning stages may give you a little more flexibility later on and possibly save you some time, money and frustration.
Gil Mayfield, P.E., is a vice president of Carter and Burgess, Inc., where he serves as director of Real Estate Services.
You can reach him at (817) 735-6708, or mayfieldgd@c-b.com
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