Wetlands Exist in a Dynamic Regulatory Landscape that May Soon Change Again

Wetland regulation can be confusing, and with the changing political landscape, it’s likely to become even more so in the near future. Sarah Wright, an Environmental Resource Specialist with Christopher Burke Engineering and twelve-year veteran of wetlands consulting, offers guidance on how to navigate the waters of wetland regulation in Indiana for landowners interested in developing their property.

How do I know if I have a regulated wetland on my property?

Wright said the most common question she gets from landowners is whether or not their property is regulated. “Everyone knows a cattail pond is a wetland,” she said, “But, people often don’t realize that wetlands aren’t always wet and don’t always look like wetlands.” Before Wright ever sets foot on a site, she looks at the National Wetlands Index, soil maps, and aerial photography to get a birds-eye view. “We’re looking for anything that will give us a clue,” she said. For example, “In a farm field, a wetland might show up as a darker area on the aerial photos.”

When Wright arrives at a site for the initial assessment, she’s looking for three things:

  • Hydric soils – Soils that are oxidized as a result of continuously or repeatedly saturated conditions. Such conditions result in the loss of elements like iron, manganese, sulfur, or carbon and impart a rusty color to the soil.
  • Hydrophytic vegetation – Water-loving plants that grow well in saturated or flooded conditions.
  • Hydrology – The presence of water or conditions indicating repeated or continuously wet or saturated conditions

Wright said the hydrology piece of the equation can be confusing, “There are 20 different indicators that can tell us if an area is or has been wet in the recent past. Most people don’t realize that you can actually have a wetland without any water in it.”

There’s a wetland on my site – now what?

“If there are wetland resources on the site that are regulated, the project grows from there,” Wright said. The next step is to determine the size and type of wetlands on the site. In regulatory terms, this is called a “wetland delineation”.

Wright said when she delineates a wetland, she selects several points throughout the site and looks for all three of the primary indicators – hydric soils, hydrophytic vegetation, and hydrology – at each location. “We’re trying to find the boundary where the wetland meets the upland,” she said, “We‘re looking for what are often subtle changes in the topography and vegetation. Then we look at the soils.”

Once the delineation is complete, Wright said she can work with site designers to minimize the impacts the proposed development will have on the wetlands at the site. And, if the impacts are unavoidable, she can assist the landowner in navigating Indiana’s permitting process, often helping them design wetland mitigation, which is usually required in such cases.

Wright said the specific steps a landowner must take in the regulatory process depends largely on the magnitude of the project. “If we have a neighborhood development for example, we’ll meet with the project designer to figure out what resources are there and look at existing plans,” she said. We first try to find opportunities to manipulate the site plan to minimize impact and thus regulation.”

The next step is to meet with all the agencies that will be involved in the permitting process. Wright said it’s very important to do this up front. “You don’t want to be surprised by an unexpected requirement later on in the process,” she said, adding that one of the most common mistakes people make is getting a full site design prior to getting a delineation. “It’s always best to get a delineation done before the design,” Wright said, “That way you don’t have to rework them later when you find you have a wetland on site.” If all the requirements are known ahead of time, Wright said the project can more easily move into the design phase, and the rest of the permitting process goes much smoother.

Understanding the regulation

Wright said that she spends a fair amount of time helping her clients understand the regulatory process. “Unless you’re involved in the regulation on a day-to-day basis, it’s hard to know exactly what to do,” she said.

She explained that for the purposes of regulation, most wetlands fall into one of two main categories:

Isolated wetlands – These are wetlands that have no connection to other waterbodies, such as wetland areas that might be found out in the middle of a corn field or a farm pasture. In Indiana, isolated wetlands are regulated only at the state level with many exemptions based on their size, quality, and function. Wright said barring an exemption, all isolated wetlands in Indiana are regulated. However, manmade retention basins, she said, are not considered wetlands for the purposes of the regulation.

Jurisdictional wetlands – These are wetlands that have a significant connection or “nexus” to a water of the U.S. These wetlands are regulated at both the state and federal level. Wright said these are the most complicated type of wetlands to regulate because they involve at least two agencies – the U.S. Army Corps of Engineers (USACE) and the Indiana Department of Environmental Management (IDEM) – and often require the involvement of others.

Wetlands regulation may soon change

Wright said that in the last 15 years or so, there’s been a lot of confusion regarding what falls into the category of a “Water of the U.S.”  And, now the regulatory definition may be changing again, with a June 27, 2017 announcement that U.S Environmental Protection Agency (EPA) and the USACE – will soon propose a rule that will rescind the Clean Water Rule passed in 2015, which clarified how “Waters of the U.S.” (WOTUS) is defined and to re-codify the regulatory text that existed prior to its passage.

To put this into context for Indiana property owners, Wright offers a brief history lesson. She explained that from the 1970s to the 1990s, waters of the U.S. were defined in the Clean Water Act as “navigable” waterbodies. However, that term was interpreted very broadly for regulatory purposes which gave the USACE and states wide latitude in the type of aquatic resources they could regulate. Then, in 2001 and 2006, two U.S. Supreme Court decisions held that both state and federal agencies must define the scope of navigable waters more narrowly, ultimately resulting in the regulation of fewer wetlands. Unfortunately, exactly how this was to be accomplished remained unclear and created a great deal of regulatory uncertainty until the passage of the Clean Water Rule in 2015. Now, that rule may soon be rescinded.

“Everybody is wondering about the impact a reversal of WOTUS rule will have in Indiana,” Wright said. She said, “Some people might think that they no longer need to be concerned, that they can do whatever they want on a site.” But, Wright cautions against that, noting that isolated wetlands are still regulated by the state under the IDEM’s 401 Water Quality Certification program.

Wright noted that different states vary in terms of the complexity of their regulatory process for wetlands, but Indiana has a pretty robust permitting program. She said that when the 2001 and 2006 Supreme Court decisions came down, IDEM moved to draft a state rule for permitting isolated wetlands in Indiana to ensure these resources would remain protected. According to Wright, Michigan, the Carolinas and Ohio have similarly rigorous regulatory programs. However, almost half the states in the country rely entirely on the federal regulations, which no longer protect these wetland types.

Fewer wetlands regulated nationwide, but don’t expect a free pass in Indiana

“I don’t think things will change a whole lot in Indiana,” Wright said. Reversing the rule will give more power to the states to regulate,” she said, “but Indiana already has a well-developed regulatory program that covers both isolated wetlands and navigable streams.” She noted that in other states that rely entirely on federal regulation, navigable streams will be the only thing regulated. “So, on a nationwide basis, we can expect that fewer waters will be regulated,” Wright said, “But, in Indiana the same waters that were regulated before will continue to be regulated.”

Wright said she still expects to encounter people who are frustrated with the regulations. “Sometimes, streams that are considered waters of the U.S. are so small – sometimes just a foot wide,” she said. “It can be hard to understand how that tiny headwater channel can be regulated. But generally, people understand the need to protect these resources.”

Wright also said that people were often more frustrated 5-7 years ago, when the state’s isolated wetlands rule was newly in effect. “People weren’t used to considering isolated wetlands, which can really throw a wrench into site designs. Now, they know how to look for them and how to design around them if possible. Wright anticipates that if it is implemented, the move to rescind the federal Clean Water Rule will create new frustrations for some landowners in the short term. “But, I enjoy keeping up with new and changing policy and regulation,” she said, adding that she’s ready to help them make sense of whatever regulatory changes may come down the road.