Wetlands & Site Development

Lesta Ammons, a biologist from the US Army Corps of Engineers’ Buffalo Branch, spoke at this month’s breakfast meeting of the WNY chapter of the New York State Commercial Association of Realtors (NYSCAR). The topic of wetlands is a critical concern for commercial real estate and site development. While the issues of wetlands can pose challenges to site development, being properly educated and prepared can help mitigate any development delays.

– What are wetlands and why are they important?
By definition, wetlands are: “Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” The protection of these features is legislated under multiple laws and acts: Including Section 404 of the Clean Water Act, Section 401 of the Clean Water Act, Section 307(c) of the Coastal Zone Management Act, Section 302 of the Marine Protection Research and Sanctuaries Act, and others.

Wetlands are ecosystems that must be preserved in order to provide habitat for wildlife and vegetation adapted for surviving in aquatic environments and also to accommodate nature’s effects. For example, during Hurricane Irene, parts of Vermont were heavily damaged by flood waters, while certain areas of the state were spared this wrath. Properly maintained watersheds controlled the flood waters and minimized flooding impacts.

– What are the types of wetlands and how can you confirm its presence?
Federal (USACE, locally) and State (NYSDEC, locally) wetlands are the common wetland delineations but local methods could also identify these environments as well. Federal and state have similar requirements to identify what is a wetland; however, NYSDEC delineates wetlands larger than 12.4 acres and will also include a 100’ buffer for permitting.

– With two potential jurisdictions how do you identify the presence of a wetland?
Federally regulated wetlands are not mapped.They are determined on a case-by-case basis and federal wetland delineation verifications are usually completed in person. There are no size limitations and jurisdictional determinations are valid for 5 years.

A developer has a few options to determine the presence of wetlands on a site: First, retain an environmental consultant. Second, inspect the property for visual clues. Some Primary Hydrologic Indicators” are typically easy to spot and are a good indication of the presence of wetlands. These indicators can be found starting on page eight of this document. Lastly, other resources may give a good idea if there is the potential for wetlands. These include USGS topographic maps, National Wetlands Inventory (NWI) maps, and soil maps.  Again, federal wetland delineations are usually completed in person, so these merely act as an indicator.

Wetlands regulated by NYSDEC are mapped, but the mapping system should not be considered a final determinant of the presence of wetlands and the NYSDEC should be involved to verify the potential of wetland habitats. You can access the online mapping system here. Using this map is also a very good indicator of federal wetlands.

–  It appears there are wetlands on your property. What does this mean?
Coordinating your approach to wetlands with the USACE and NYSDEC is critical. There is the potential to acquire a permit to develop land impacting wetlands or other mitigation techniques available, but the mantra to remember when dealing with wetlands is, avoid and minimize impacts.

One last point, please make sure you are not confusing floodplains with wetlands. Floodplains will have to be a topic for another day!

It can’t be stressed enough, when dealing with wetlands or the potential of them, the best first step is to reach out to the local office of the USACE and the regional NYSDEC office.