When most people think of the word “wetland,” they imagine something resembling the Everglades. The legal definition, however, is not so simple or clear.
For starters, there is no wetland statute nor even a Congressional definition of the term. Rather, a conclusion of whether land is or is not a wetland is based on guidelines set forth in 1987 manual published by the U.S. Army Corps of Engineers. This manual requires that certain types of vegetation, soils, and hydrology be present for land legally to be considered a wetland. According the 1987 manual, land can be considered wetland even if the top twelve inches of soil are completely dry. Therefore, the government often designates as a wetland property that the casual observer would not consider to be one.
Even if a landowner is not aware of the presence of wetlands on his property, he can be held liable for civil penalties of up to $27,000 per day of violation–and possibly be criminally prosecuted–for filling in wetland if the Corps of Engineers later determines that the property contains wetland. Accordingly, a landowner who is worried about the possible presence of wetlands on his property should have an expert in wetlands biology examine the property before filling in the property for development.
Alternatively, it is possible in some instances to request that the U.S. Army Corps of Engineers itself perform the delineation on your behalf. But beware! Even if the Corps provides you with a “final delineation” of the wetlands on your property, you may not be entitled to rely on it.
In a case before the U.S. Court of Federal Claims, the Corps performed a “final delineation” on land near Reno, Nevada. Relying on the delineation, the owners purchased the land for development. The Corps changed its mind and in 1991 redelineated the property. They even redelineated again in 1994! The Corps now claims that it owes no compensation to the property owners who relied to their detriment on the original delineation.
Reprinted from Your Property Matters, March, 1997, Defenders of Property Rights.