Legal Wetlands May Be Difficult to Recognize

Jim Anderson ,Wildlife and Fisheries Professor, WVU - Davis College of Ag. Forestry, and Consumer Sciences; Ron Fortney, Civil and Environmental Engineering Professor, WVU College of Engineering and Mineral Resources; William N. Grafton , Wildlife Specialist, WVU Extension Service; Rick Heaslip, State Resource Conservationist, Natural Resources Conservation Service; and Casey Shrader, State Biologist, Natural Resources Conservation Service
 

This article was published in the November 2001 issue of West Virginia Farm Bureau News.


Most people recognize a picturesque cattail marsh with ducks swimming through open water areas as a wetlands Many other wetlands are not as obvious.

To be considered a jurisdictional or legal wetlands an area must have hydrophytic vegetation, hydric soil, and wetland hydrology. A field survey generally is required to determine if an area meets the legal definition of a wetlands A professional wetland ecologist uses a number of primary and secondary indicators to determine if the three primary parameters are present.

The main rules and indicator variables are presented below. However, numerous exceptions exist for sandy soils, soils with high iron content, and other unusual situations.

Hydrology

If water is present for at least 5 percent of the growing season, an area normally meets the hydrology requirement for wetlands, although other indicator variables may be needed. One or two indicators of wetlands also may indicate wetland hydrology. These indicators include inundation, saturation within 12 inches of the surface, water marks, drift lines, sediment deposit, water-stained leaves, and aquatic invertebrate remains.

Hydric soils

Soils that are saturated or flooded with water long enough during the growing season to develop low oxygen levels meet the criteria for wetland soils. In West Virginia, at least 17 soil types are recognized as hydric soils. Because many wetlands are small, these soil types often are not mapped. Therefore, field criteria are needed to determine if wetland soils are present. Color is the most common factor evaluated. Soils that are primarily black or gray, perhaps with bright orange spots or streaks (because of iron in a low-oxygen environment), are generally wetland soils. Pictures of hydric soil indicators can be obtained on the Web (www.statlab.iastate.edu/soils/hydric/fieldind/fieldind.html#FIELD).

Hydrophytic vegetation

Plants that grow in water or a substrate that sometimes has low oxygen levels because of excessive water levels are hydrophytes or wetland plants. The general rule for vegetation is that more than 50 percent of the vegetation must consist of plants that occur predominantly in wetlands. Lists of wetland plant species are available for regions of the United States on the Web (www.nwi.fws.gov/bha/). Listed plants are classified according to their proclivity to occur in wetland environments. For example, cattails are listed as obligate wetland plants because they occur in wetlands more than 99 percent of the time.

Wetlands are protected under Section 404 and 401 of the federal Clean Water Act, which regulates the discharge of dredged or fill material into the waters of the United States. If an area meets the technical definition of a wetland it is illegal to fill it in unless federal and state permits are obtained. The U.S. Environmental Protection Agency has the technical lead for issues dealing with wetlands. However, the U.S. Army Corps of Engineers (ACOE) is the primary agency responsible for enforcing wetland regulations. The Natural Resources Conservation Service (NRCS) deals with most wetland issues on farmlands.

In the April 2001 court case Solid Waste Agency in Northern Cook County vs. Army Corps of Engineers, the U.S. Supreme Court ruled that the ACOE does not have jurisdictional authority to enforce wetland regulations on wetlands that are not associated with navigable waters. Currently, there is no protection for these isolated wetlands, except for disincentive programs associated with wetlands on farmlands.

The "Swampbuster" provision of the 1985 Farm Bill withholds farm program benefits if a farmer drains, dredges, or otherwise manipulates a wetland to make production possible. Wetlands manipulated before 1985 are termed "prior converted wetlands" and are exempt from the Swampbuster provision. NRCS personnel are responsible for administering the Swampbuster provision.

If you need help in determining if you have wetlands on your property or if you have any questions about wetlands, contact your local NRCS office or the ACOE.