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Waters and Wetlands - Do I Need a Permit?

 It is critically important for land developers, landowners and real estate professionals to understand water quality permitting programs.  Failure to obtain, and comply with, required water quality permits can cause substantial disruption to your project and subject you to substantial civil and criminal fines and sanctions. 

Recent enforcement cases are sobering:

• Two South Dakota landowners were ordered by EPA to pay a $35,000 civil penalty and restore 120 acres of illegally drained wetlands.
• A Florida man who illegally filled wetlands to make a ramp to transport his jet skis from his property to nearby Lake Okeechobee was sentenced to three years in jail and three years of supervised release and required to pay restitution and a $25,000 fine.
• A major national retailer cited for storm water violations at its construction sites in Utah and other states reached a settlement requiring it to pay a $3.1 million civil penalty.

Anyone contemplating development activity in and around waters or wetlands should do the following:  1) Identify the presence of waters, wetlands or even seasonally dry channels and washes that may be subject to regulatory jurisdiction, and 2) Determine whether the contemplated development activities will require one or more water quality-related permits.

1.   Does your contemplated development include areas that are subject to regulatory jurisdiction?    

The Federal Clean Water Act prohibits unpermitted discharges of pollutants into "waters of the United States."  The Army Corps of Engineers (the "Corps") and the Environmental Protection Agency broadly interpret regulated waters to include all navigable waters, navigable and nonnavigable tributaries of such waters, wetlands adjacent to such waters and their tributaries, and other waters the use, degradation or destruction of which could affect interstate commerce.  The agencies interpret their jurisdiction as extending to the upper reaches of tributaries, including drainage washes and channels that are dry most of the year and flow only seasonally or in response to precipitation or snow melt.  They also extend their jurisdiction to manmade ditches and canals that exchange water with regulated water systems.  The authority over isolated waters and wetlands that are not tributary or adjacent to navigable water systems is hotly disputed, but few developers or landowners have the patience or funds to put their projects on hold while they resolve jurisdictional disputes in court.

The Utah Water Quality Act makes it unlawful to pollute "waters of the state."  These waters include all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, contained within, flowing through, or bordering upon the State of Utah.  The only exception is for those waters that are confined to and retained within the limits of private property and do not develop into or constitute a nuisance, a public health hazard, or a menace to fish or wildlife.

• 2) What water quality permits may be required? The type of waters and wetlands and the proposed method of disturbance determine the type of water quality permit required. The following is a representative list of state and federal water quality permits commonly required for land development projects:

• Federal Clean Water Act § 404 Dredge and Fill Permit - for discharging dredged or fill material into "waters of the United States." Regulated activities extend beyond traditional dredging operations and include a wide range of activities that result in the deposit or redeposit of native or foreign material into regulated waters. Regulated activities include mechanized landclearing, grading, soil ripping, sidecasting and other earth-moving activities in regulated waters and wetlands which result in the deposit or redeposit of material into the waters or wetlands. Minor activities may be allowed under a general or regional permit that can be obtained with minimal notice and administrative processing, while more extensive activities require application for an individual permit and lengthy review process. Obtain this permit from the Army Corps of Engineers.
• Rivers and Harbors Act § 10 Permit - for construction, excavation, or filling activities below the ordinary high water mark of commercially navigable waters of the United States and their tributaries. This permit program is administered in coordination with the § 404 program to avoid duplication. Obtain this permit from the Army Corps of Engineers.
• Utah Stream Alteration Permit for relocating any natural stream channel or altering or changing the beds or banks of any natural stream channel in Utah. Obtain this permit from the Utah State Water Engineer.
• Clean Water Act § 402 NPDES/ UPDES Discharge Permit for discharging pollutants into surface "waters of the State." Obtain this permit from the Utah Division of Water Quality (DWQ), or from the EPA on tribal lands.
• Clean Water Act § 402 NPDES/ UPDES Storm Water Discharge Permit for discharging storm water associated with industrial activities into surface waters of the state and for discharging storm water from construction sites that disturb areas in excess of one acre. A general storm water permit may be readily obtained with minimal processing but must be supported by a storm water management plan. Obtain this permit from the Utah DWQ or from EPA on tribal lands.
• Groundwater Discharge Permit for certain facilities that discharge or may discharge pollutants to groundwater of the State. Obtain this permit from the Utah DWQ.
• Clean Water Act Pretreatment Permit for discharge of industrial effluent into the sanitary sewer system. Obtain this permit from the local publicly owned treatment works.

Anyone planning to undertake activities that may impact waters or wetlands should consult with a qualified environmental consultant to evaluate environmental conditions, the jurisdictional status of any existing or former waters and wetlands on or near the property, and the potential need for permits.  Prudent due diligence and planning can avoid unfortunate delays and environmental noncompliance.

Michael Keller Chairs the Environmental, Natural Resources, and Energy Practice Group at the law firm of Van Cott, Bagley, Cornwall & McCarthy.  He can be reached at (801) 237-0287and mkeller@vancott.com