Jurisdictional vs Non-Jurisdictional Wetlands
Wetlands can be considered jurisdictional if they meet certain criteria established by the government agency that has jurisdiction over them. In the United States, the primary agency responsible for wetland regulation is the U.S. Army Corps of Engineers (USACE), which administers the Clean Water Act. It’s important to note, the USACE is not the only agency with jurisdiction over a wetland. In major metropolitan areas like Chicago Illinois and the collar counties of Lake, Kane, DuPage and McHenry, the county stormwater agencies have plenty of authority to regulate land uses and specifically wetlands. Oftentimes, the county agencies are more strict than the Army Corp. Additionally, the municipalities
Under the Clean Water Act, wetlands are considered jurisdictional if they meet one or both of the following criteria:
- They are adjacent to a navigable waterway: Wetlands that are adjacent to a navigable waterway, such as a river, lake, or ocean, are considered jurisdictional. The USACE defines “adjacent” as being directly connected to a navigable waterway or having a significant nexus to it.
- They have a significant nexus to a navigable waterway: Wetlands that do not have a direct connection to a navigable waterway may still be considered jurisdictional if they have a significant nexus to it. A significant nexus means that the wetland has a substantial ecological, hydrological, or biological connection to the navigable waterway that affects the chemical, physical, or biological integrity of that waterway.
Wetlands that do not meet the criteria established by the USACE for jurisdictional wetlands are considered non-jurisdictional wetland. For example, a wetland that is not adjacent to a navigable waterway and does not have a significant nexus to it may be considered non-jurisdictional. In addition, some wetlands may be exempt from regulation under certain circumstances, such as if they are used for agricultural purposes or if they are created for mitigation or restoration purposes.
It is important to note that just because a wetland is considered non-jurisdictional does not mean that it is not ecologically valuable or important. Wetlands provide a range of ecosystem services, such as flood control, water quality improvement, and habitat for wildlife, and may be protected by state or local laws and regulations.
Can You Build on a Jurisdictional Wetland?
In our business the term is “disturb”. Can you disturb a jurisdictional wetland? In general, the USACE will consider permit applications for building on wetlands on a case-by-case basis. To obtain a permit, the applicant must demonstrate that the proposed project will have minimal impact on the wetland and that steps will be taken to mitigate any adverse effects.
The USACE may also require the applicant to demonstrate that no other feasible alternatives to building on the wetland exist, such as developing on upland areas or using alternative building techniques that minimize impact on the wetland.
Counties & Municipalities Also Have Jurisdiction Over Wetlands.
Depending on the size of your county and its proximity to a major metropolitan area, your county and city could have additional layers of regulation on the road to getting a building permit. These additional layers of regulation can be equally as strict as the US Army Corp but they are never less strict. Often, they are more strict. The reasons for this phenomenon is the amount of stormwater runoff from roofs and parking lots. Urban and suburban counties are very interested in preventing flooding. Often this comes with land use restrictions to allow more places for water to remain.
How Do I Know If My Property Is In a Jurisdictional Wetland?
The only way to know for sure is to have a wetland delineation done by a wetland delineator like A3 Environmental Consultants. This is not to say that you automatically need a full wetland delineation. We have lesser options that are less expensive. We can give faster answers and give you a very good idea of what, if anything, needs to be permitted.
Call A3E for Wetland Due Diligence
Whether it’s wetland screens, wetland confirmations, wetland delineations or a jurisdictional wetland determination, A3 Environmental Consultants can get your project done. Call (888) 405-1742 or email us at Info@A3E.com and let’s talk about your project.