November 1996
A wetland is neither fish nor fowl (although it can be a good habitat for both), it is not completely water nor is it entirely land. Some wetlands appear to be totally dry, while some areas with standing water are not wetlands. Some wetlands are entirely under water throughout the year; others are completely dry for weeks or months. Wetlands can suddenly come into being and just as suddenly disappear.
For example, property that was clearly upland can suddenly become wetland because of development and changing drainage patterns on that land or on an adjacent site. As a result of this inherent ambiguity as well as the penalties and potential liabilities for failing to recognize the presence of a regulated wetland, issues of wetland delineation and management can often determine the ultimate success or failure of a project.
To reduce the likelihood of a project being derailed by the unexpected discovery of a wetland, it helps to understand the wetland delineation and management process and the role of the qualified ecologist on the site development team. The determination and delineation of wetlands on a site, prior to a final purchase agreement, can have a significant impact on the ultimate price as well as on the overall feasibility of the proposed project.
For example, if wetlands are present, will enough land remain to accommodate the objectives of the proposed site plan? Can the development be built around the wetlands? Should a two-tier pricing system be negotiated, one price for upland and a lower price for wetland?
If a wetland permit is required, how should it be prepared and what is the likelihood that it would be approved? An experienced ecologist, along with other members of the site development team, can help to answer these and many other important questions.
Wetlands assume various forms such as meadows, forests, swamps, marshes, bogs and fens, but they all share the common feature of serving as an interface between land and water. Wetlands often fulfill vital functions in our environmental and economic health by attenuating storm run-off flows, providing a site for diversion of flood peaks, purifying water by filtering and settling sediments and pollutants before they can get into lakes and streams. However, wetlands vary as to their effectiveness in fulfilling these functions. They usually contain significant hydrological gradients and vegetational mosaics.
Determining the exact point at which a wetland ends and upland begins can be nearly impossible because of these gradients, but this task is critical from both the developer's and regulatory agency's perspective. The presence, location and exact size of a wetland on a site determines whether it is regulated or not. In Michigan, wetlands may be regulated at the local, state, and federal levels.
The most commonly accepted delineation criteria in use today is the Corps of Engineers "three-pronged" approach developed in 1987. The Corps identified three criteria to be used in determining wetlands under federal jurisdiction: the presence of characteristic vegetation, specific soil types, and evidence of hydrology in the form of surface or subsurface saturation. The Corps also identified various indicators to be evaluated at sites in order to determine whether the criteria are met.
On the other hand, procedures for delineating wetlands under state law are different. In Michigan, if two of the three criteria have indicators at a site, the site is considered wetland. In practice, then, at most sites, both the federal procedures and state procedures yield similar results, but there are instances where the Michigan approach can result in regulating more land as wetland, particularly at sites with atypical conditions.
The application of these criteria at a site, however, is often by no means straightforward. In lower Michigan, for example, a majority of sites have atypical conditions due to land clearing, agricultural practices and drainage improvement. In the southeast corner of the state, which is characterized by a flat topography, poorly drained soils and seasonal standing water, it is possible for plant species characteristic of wetlands to grow on a property that exhibits no other wetlands features or functions and so may not be classified as a regulated wetland. For example, much of the agricultural land in Michigan, which to most people today is indisputably upland, would revert to an obvious wetland state if left fallow for a decade.
The wetland status of any property, whether it be in Michigan or elsewhere, also can be affected by such atypical conditions as: development on adjoining property that can potentially alter land drainage patterns and convert an uplands site into a regulated wetlands; prior extraction of soil or minerals from a site; and the deposition of soil or fill material.All these conditions cause changes by removing or adding indicator plants and soil types. These and a myriad of other variables make it necessary to conduct wetlands delineation on a case-by-case basis, applying the sciences of ecology, botany, hydrology and pedology (soils).
Subtleties such as these make it necessary to engage ecologists and biologists experienced at delineation under federal and state procedures. Moreover, competency in delineation must be matched by experience in the preparation of permits that meet agency standards for completeness and effectively address agency evaluation criteria.
Failure to properly identify and avoid regulated wetlands can result in significant penalties, ranging from $25,000 to $125,000, or even the abandonment of a planned project. Michigan's Wetland Protection Act is very stringent and provides mechanisms for enforcement, including levying of penalties. In the 14 years since the passage of the act, a number of property owners have seen state courts rule against them and stipulate penalties for illegal fills or other prohibited uses of wetlands.
For more information on environmental programs for your business, contact Mr. Thomas Wackerman, Managing Partner at Applied Science & Technology, Inc. at 800.395.ASTI or visit our homepage
Wetlands management does not end with delineation, but includes permitting and mitigation. Next issue we will look at wetland permitting.
On November 14, Applied Science & Technology, Inc., in conjunction with Dickinson, Wright, Moon, VanDusen & Freeman, will present a breakfast seminar on compliance programs for the 90's, focusing on the new Audit Privilege Protection. For reservations or more information call Lenna Dietrich at 1-800.395.ASTI.
Applied Science & Technology, Inc. staff is presenting a one semester course on Environmental Information Management using the Internet. at Wayne State University in Detroit, Michigan. The course starts January, 1997 and is taught entirely on the Internet. For more information call Tom Wackerman at 800.395.ASTI or send email request to twacker@chem1.eng.wayne.edu
6th Unless exempted, each seller or lessor of more than four residential dwellings built before 1978 must comply with lead-based paint disclosure requirements. [TSCA: 24 CFR 745, FR 3/6/96]
13th Owners and operators of an external floating roof benzene storage vessel equipped with a liquid-mounted primary seal, and without secondary seams, must measure gaps. [CAA: 40 CFR 61]
15th Owners and operators of existing magnetic tape manufacturing operations, that do not need to install add-on pollution control, must comply with emission standard,s and monitoring and recordkeeping requirements. [CAA: 40 CFR 63, FR 12/15/94]
16th Initial notification reports or exemption calculations for existing bulk gasoline terminal or pipeline breakout stations are due. [CAA: 40 CFR 63.428, FR 2/29/96]
31st Generators or treaters of non-hazardous characteristic wastes that experienced a change in process must notify regulatory authorities. [RCRA 40 CFR 268.9, FR 9/19/94]
TECH-BITS is a monthly publication of Applied Science & Technology, Inc. (ASTI), P.O. Box 1328, Ann Arbor, Michigan, 48106. For a free mail subscription call 800.395.ASTI. For a free electronic subscription, send an email message to twacker@chem1.eng.wayne.edu, referencing Tech-Bits in the body of the message.
TECH-BITS is intended to provide information concerning current environmental issues, and is not intended to provide technical or legal advice regarding any particular situation. Questions about individual situations should be addressed to your environmental engineer. Copyright 1995 by ASTI