The Set Up
Say you have a contract to purchase land at a great price in a great location for a new development project. The financial projections for the project (both costs and revenues) look great and the internal rate of return meets your investment requirements. All looks promising, except, during due diligence, someone mentions that there might be wetlands in the planned development area.
What to do next depends on how much risk you and your financial backers can stomach. It is a violation of federal law to impact waters of the United States without a permit. If your project is self-financed and you are a risk taker, you might decide to move forward with little to no field work and coordination with the U.S. Army Corps of Engineers (USACE). If you have a traditional loan or work for a publicly traded company you might move forward after more extensive field work and coordination with the USACE, including a permitting step.
Wetlands assessments can range from an inexpensive Desktop Evaluation up to a full, Wetlands Delineation using USACE procedures and forms. For a 500 acre, partially forested tract, these services might range from several thousand dollars to the high two figures. The amount you spend should depend upon your tolerance for risk and how much capital must be committed at that moment in the process.
Desktop Evaluation
A Desktop Evaluation considers readily available historical and current aerial photos, floodplain maps, and the US Fish and Wildlife’s National Wetlands Inventory (NWI) maps. This is the least expensive method, but its also is the least accurate and least defensible method should questions arise after the development is constructed. A Desktop Evaluation is not sufficient to secure an official ruling from the USACE on the regulatory status of the wetlands. NWI wetland polygons may or may not represent an actual wetland due to the age of the satellite imagery used to produce them and because ground surface vegetation and hydrology may be obscured. Historical aerial photographs are also reviewed and they inexpensively provide great insight about the potential for wetlands to be present; however, they are no substitute for direct observation of site conditions.
A Desktop Evaluation is typically a good choice prior to any land purchase. The results can help give you a rough qualitative sense of whether you should spend a bit more investigating what’s really there and how the wetlands might constrain your land plan and revenue forecast. It can also help give you a rough idea about what kind of permitting might be necessary and the schedule impact that might have.
Wetlands Assessment
The next level of investment involves a site visit by a professional wetlands scientist to observe the site directly and to examine the soils, plants, and hydrology in a few locations. This is often called a Wetlands Assessment. It does not comply with the full delineation requirements imposed by the USACE, however, it does allow the consultant to provide an opinion regarding the location and size of wetlands on the property. After a Wetlands Assessment the consultant will typically provide a brief report with a refined site map, an estimate of the size and location of wetlands on the property, an opinion about whether they might be under federal jurisdiction (and might trigger permitting if unavoidably impacted), and initial thoughts about permitting options (if anticipated to be required).
The results of a Wetlands Assessment reduces your risk exposure, provides more information on which to base a purchase decision, helps guide land planning decisions, and helps refine project financial projections. The results of a Wetlands Assessment can sometimes justify walking away from a project, especially if extensive federally regulated wetlands are present and permitting unavoidable impacts would be too time consuming or if the replacement of lost wetlands would be too costly. The results of a Wetlands Assessment can sometimes justify proceeding with the project without USACE coordination or permitting if the Wetlands Assessment shows no unavoidable impacts that would require permitting.
Wetlands Delineation
A Wetlands Delineation evaluates soils, hydrology, and vegetation at multiple locations in and around the boundary of each wetland feature to accurately identified the size, location, and shape of each wetland area on the site. The process is defined in detail in national USACE Guidance (with regional supplements) and the results are presented in USACE forms. This is the most expensive approach, however, it accurately and precisely defines the location and size of each area of the project that is likely to be subject to federal regulation, in the consultant’s opinion.
A Wetlands Delineation is an extensive study that reduces your risk and liability exposure even more than a Wetlands Assessment. A Wetlands Delineation also allows you to more confidently estimate the size of any unavoidable wetland impacts your development might create. The accurate wetland map can be used to refine the land plan to avoid and minimize impacts to wetlands. The revised land plan can then be used to update the project financial projections.
Jurisdictional Determination
Not all wetlands or creeks are “Waters of the United States” subject to federal regulation. Your consultant can provide a professional opinion regarding the status of the wetlands and waters on your property; however, the USACE is the only entity that has the legal authority and power to officially determine whether a wetland or waterbody is subject to federal regulation. Please see this post for a primer on how they do this.
If you elect to conduct a Wetlands Delineation, that detailed information can be submitted to the USACE, along with an “Approved Jurisdictional Determination Form” to ask the USACE to verify the delineation and to make a determination regarding the jurisdictional status of all wetlands and waters on your property.
There are actually two kinds of determinations. An Approved Jurisdictional Determination (AJD) is a final statement as to the status of all wetlands and waters on your site. It is used in cases where there may be some wetlands or waterbodies on your site that are likely not federally regulated, because, for example, they are isolated, or were constructed in the past, or for some other reason. An AJD (hopefully) confirms your consultant’s opinion and gives you permission to impact certain wetlands that are not federally regulated while protecting others that are. This reduces your risk and liability exposure because the entity with the sole legal authority to make the decision, makes the decision in writing, in the form of a “determination letter.”
The second kind of determination is a Preliminary Jurisdictional Determination (PJD). A PJD is typically used if you want to save time and you’ve determined that your project can be developed without any impacts to wetlands or water features and still be financially viable. The PJD, in effect concedes that all wetlands and water features on the property are waters of the United States and that unavoidable impacts to them must be permitted.
A future post will provide an overview of the permitting options offered by the USACE to project sponsors that have unavoidable impacts to waters of the United States.