Corps determinations

Landowners and developers are lately learning that what they thought was dry property is deemed wetlands.

It's a mystery to Randy Rogers how anybody could call the eight acres of land he's trying to market just off Interstate 12 near Walker “wet.” The tract is not marshy. He can't recall ever seeing it flooded, and he says all it needs right now is a good bushwhacking to clear the weeds.

“If a duck tried to land anywhere in that acreage, he'd get brush burns,” Rogers says.

As dusty and prickly as the property may seem, the U.S. Army Corps of Engineers notified its owner, the Livingston Economic Development Council, that the site is a wetland. That means the acreage, which lies within a 200-acre tract developed by the organization as an industrial park, is subject to some costly requirements before a user can set up shop there.

“It's been a very frustrating experience,” says Rogers, who is president and CEO of LEDC.

Rogers is not alone. Many landowners in Louisiana and around the country have been surprised to learn that a property they considered “dry” actually falls within the federal government's definition of “wetlands” under the Clean Water Act.

Because the government in recent decades has made the retention and restoration of wetlands a priority, an owner of such land who wishes to fill and level the site for commercial or residential use must comply with federal requirements for doing so or face stiff penalties.

The requirements have frequently put landowners in conflict with the corps, which has responsibility for enforcing wetlands regulations. A 2006 Supreme Court ruling, in the case of Rapanos v. United States, may have aggravated the issue.

The ruling, which narrowed the official definition of wetlands, left some landowners thinking that they no longer had to worry about the corps looking over their shoulder. Following that decision, the town of St. George, Utah, proceeded with construction of a new airport on land the corps had previously said contained wetlands. But after the airport was completed, the corps threatened the city with daily fines.

Although the corps recently reversed itself and declared that the Utah site does not fall within the agency's wetlands jurisdiction, owners of wetlands elsewhere should not assume they are in the clear.

“There are a lot of wetlands in south Louisiana, and you have to get a permit prior to working in them,” says Robert Heffner, surveillance and enforcement chief for the corps' New Orleans district, which includes much of southeast Louisiana.

Heffner says that despite apparent confusion over what constitutes a wetland, the criteria are simple. “We look at soils, vegetation and hydrology,” he says.

In south Louisiana, analysts evaluate the soil to determine whether it is “hydric,” or formed under conditions of saturation or flooding. They examine vegetation and decide if it is predominantly the type normally found in a wetland. And they analyze the hydrology of the land to determine if it is saturated at or near the surface during more than 5%—approximately 15 consecutive days—of the area's growing season.

“For a long portion of the year, the site may seem very dry,” Heffner says, “but when all three of those conditions are met, it's a wetland.”

While the existence of what the corps calls “jurisdictional” wetlands can complicate construction plans on a site, it doesn't necessarily preclude development. One of the most common solutions involves a “mitigation bank.”

Wetland mitigation banks are permanently protected lands that have been restored and managed for a purpose such as wildlife habitat, water quality protection, flood control or ecological diversity. State and federal agencies approve using portions of these lands to offset wetland losses elsewhere, on sites being filled and prepared for construction, for instance.

As the Livingston Economic Development Council learned in recent years, the mitigation bank method is not cheap. In 2010, the corps notified the council that one acre of a seven-acre tract that had already been cleared for development was a wetland and subject to the permitting process.

“We had to pay $37,000 to a mitigation bank to get a permit to fill this one acre so that if we sell it, the new owner won't have to worry about it,” Rogers says.

The council likely will make further mitigation investments down the line. Rogers says the organization has its eye on another potential industrial site farther along I-12. “It's a beautiful site for industrial development,” he says, but the current landowner has received notice from the corps that half of the 250-acre tract is wetlands.

“As I look at tracts now, everywhere I go, I'm running into problems of wetlands,” Rogers says, adding that he's heard similar complaints from landowners in Tangipahoa and St. Tammany parishes.

While Rogers says the council may be able to recoup its mitigation costs when it sells a property, he adds: “We'd rather use that money to attract new jobs and investment.”

But according to Shane Sandefer, a partner with the Kean Miller law firm in Baton Rouge, developers and builders throughout the region would do well to familiarize themselves with the regulations affecting land that's wet or prone to becoming wet.

“The development of property in some of these parishes is often affected by wetland issues,” he says.

Sandefer says getting a jurisdictional determination from the Corps of Engineers before doing anything to a property can avert costly mistakes. He tells of a woman who purchased land near the Amite River and had a home built on it, leaving all permitting matters to her contractor, who failed to consult the corps. Later, corps personnel visited the site and required the woman to pay compensatory mitigation.

Because the wetlands occupied only a small portion of the property, Sandefer says, the owner could have avoided the problem altogether. If she had sought a corps determination in advance, he notes, “the location of the home on the property could have been adjusted slightly so there would be no impact to the wetland and no mitigation would have been required.”

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