How Do I Save My Development Project When the Property is Covered with Wetlands?
By Jim Lang
Owners, developers and builders in Coastal Virginia are feeling pain from a change in the way the U.S. Army Corps of Engineers (Army Corps) is interpreting the wetlands rules, with the Army Corps in many cases telling people that they have far less developable land than was expected. The justification for the new approach is a document that the Army Corps issued in late 2010, nearly six years ago. Few in the development community noticed at the time because construction activity in Coastal Virginia ground to a halt during the 2007–2009 recession and is only now picking up again.
Wetlands on a property complicate efforts to build. There are approximately one million acres of wetlands in Virginia; 25 percent are tidal wetlands, and the remaining 75 percent are non-tidal. Nearly all of these 250,000 acres of tidal wetlands are found in and around Coastal Virginia, in addition to the non-tidal wetlands also found here.
Through a process known as “wetlands delineation” a consultant retained by the owner, developer or builder determines if wetlands are present on a site and, if so, establish their boundaries. The wetlands delineation is submitted to the Army Corps after which the Army Corps makes a “confirmation site visit.”
The difficulty arises when the Army Corps insists that there are wetlands at areas that the consultant determined were non-wetland, oftentimes with many hundreds of thousands of dollar—or more—hanging in the balance.
Three characteristics must be present before an area can qualify as a wetland: 1. hydrophytic vegetation, 2. hydric soil and 3. wetland hydrology. If one or more characteristics are absent, then the area is non-wetland.
However, in reliance on language in Chapter 5 of the Regional Supplement that was issued in 2010, the Army Corps is now designating areas as wetland even though “no indicators of hydrophytic vegetation are evident.” Similarly, the Army Corps relies on Chapter 5 of the Regional Supplement to designate areas as wetland even though “hydrology indicators appear to be absent.” The result is an expansion in the area that the Army Corps wants to designate as wetland.
With such large dollars riding on the results of the wetlands delineation, what can be done? The regulations provide for an “administrative appeal,” but it will be decided by an official at the Army Corps, which, it bears noting, is the agency that generated the wetlands delineation in dispute. The possibility of court review is uncertain because creation of the wetlands delineation is but a waystation in the permit issuance process, a process which can, in some cases, last several years.
Many courts insist that the applicant see the application process through to the end before coming into court. Other courts grant immediate review, which is quite useful to owners, developers and builders.
On March 30, 2016 the U.S. Supreme Court heard argument on the merits of the two approaches. A decision is expected any day.
Jim Lang is a partner at the Pender & Coward law firm in Virginia Beach where he focuses his practice on environmental law. He frequently publishes and speaks on environmental law topics.