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Troubleshooting
Frequently Asked Questions

Q: I'm interested in buying land, but am concerned about the wetlands on it.  What should I do first?
A:  It would be advisable to seek the advice of an attorney knowledgeable in real estate law.  You may contact the Environmental Regulatory Coordinator to discuss concerns and options for the available property.  You can also ask your real estate agent if a professional delineation was performed recently.  To be valid, the delineation should be certified by the COE or DNR.  If no delineation is available, suggest that the sellers provide a delineation.  Here is a list of qualified wetland delineators in the Superior area.

Q:  How are wetlands legally protected?
A:  Wetland impacts are governed at the state and federal level by the following:

Federal

State

  • Navigable Waters Protection (Ch. 30 & 31, Stats.) Regulates construction and waterway alteration in and adjacent to navigable waters, including dams, filling, water diversion, grading and dredging.  Alteration of non-navigable waterways, such as dredging, is also regulated.
  • Shoreland and Wetland Zoning Oversight (Ss. 59.971, 61.351 & 62.231, Stats.) Statute requires DNR to provide technical assistance to local zoning officials, oversight of local decisions and general development & wetland protection standards for "shorelands" adjacent to navigable waters, which are administered by local government.
  • Water Quality Certification (S. 401 Federal Clean Water Act, NR 103, & NR 299) Advises the Corps when projects are inconsistent with state water quality standards.  The federal permit won't be issued until the project becomes consistent with those standards.

Typically, the COE regulates discharge of material into traditional navigable waters—that is, waters that are, were, or could be used in interstate or foreign commerce, including waters that are influenced by the tide (CWA, 1972).

Over the years, the law, as it was written has required legal interpretation to settle jurisdictional disputes between the public and the COE.  Amendments to the definition of what is regulated include:

  • Any activity associated with a discharge of dredged material that degrades an area of waters of the United States if it has more than a de minimis (inconsequential) effect on the area by causing an identifiable individual or cumulative adverse effect on any aquatic function. (CWA, 1972)
  • Wetlands and streams that cross state lines, as well as wetlands that are adjacent to traditional navigable waters (Riverside v U.S. 1985).
  • There is a significant nexus between the wetlands in question and navigable waters in the traditional sense.  A significant nexus exists where a wetland, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of waters more readily understood as navigable.  (Rapanos v. U.S., Kennedy, 2006)
  • A relatively permanent body of water is connected to traditional interstate navigable waters, and a wetland has a continuous surface connection with that water.  Relatively permanent includes seasonal rivers, as well as those water bodies that might dry up in extraordinary circumstances, such as drought.  (Rapanos v. U.S., Scalia, 2006)
  • The COE does NOT regulate:
    • Waters or wetlands that are isolated, with no surface water connection to traditionally navigable waters that are located wholly within one state and used only as habitat for migratory songbirds (no interstate commerce) (SWANCC v. U.S. 2001).
    • Waters that are intermittent or ephemeral or wetlands that are adjacent to intermittent or ephemeral waters unless a significant nexus can be defined.   (Rapanos v. U.S., 2006)

Q:  Can I build if there are wetlands on my property?
A:  Keep in mind that wetland permit application requires a statement of purpose and need and an alternatives analysis.  The federal and state rules require that wetland impacts be avoided and/or minimized to the maximum extent practicable.  During your planning process, you naturally think of several options.  Keep track of every option—location, costs, limiting factors, positive and negatives for each one.  Document why each alternative is acceptable or not acceptable.  The wetland regulatory rules require that the option that is least damaging to the environment while still fulfilling the purpose of the project is the option that should be selected.  The option you choose should be the best fit for your project AND incur the fewest wetland impacts.

Avoid
If wetland impacts can be avoided altogether, then no extra permitting is needed and no mitigation (compensation for the wetland loss) would be required.

Minimize
If wetland impacts are unavoidable, minimization will be required.

Ask yourself the following and document your answers:

  • Can I reduce the footprint of my project without sacrificing the space that I need?
  • Can I arrange my project differently to maximize use of available uplands on the property?
  • Can I build the project more vertically (2-story) and less sprawling?
  • Can I reduce the amount of fill for the yard and preserve some of the low lying areas for green space (regulations don’t prohibit you from cutting vegetation above the ground level, so you could have more yard—it might just be a little soggy in the spring or after big rain events- remember better in your yard than in your basement!).

Mitigation
After you have avoided and minimized to the maximum extent practicable and there are still wetlands you cannot avoid, the federal law requires that the area and functions of the impacts wetlands be compensated for through mitigation.  Usually this means that the project owner would restore, build, or preserve wetlands somewhere else—whether it be on the property or nearby.  Another option is to purchase wetland mitigation credits from a mitigation bank.  The City of Superior provides an opportunity to purchase mitigation credits from the City's Mitigation Bank. Mitigation credits are currently $9,500 per acre—so it pays to minimize wetland impacts as much as possible.

Q:  How do I apply for a wetland permit?
A:  In the City of Superior, the permit applications are available at the Public Works Department or downloadable in PDF format.  A pre-project consultation with the Environmental Regulatory Coordinator is required for any SAMP eligible project and strongly recommended for any other projects that might affect wetlands.  All applicants are required to avoid wetlands where possible, and minimize wetland impact through site design.

Q:  My yard has delineated wetlands, why doesn't it look like a wetland to me?
A:  Wetlands are not always easily identifiable.  Try walking through your wetland in the spring or after a heavy rain.  You may notice the difference between the wetland and the uplands.

Q:  How do wetlands benefit my property?
A:  During rains, the wetlands help slow down stormwater flow and reduce water and erosion damage to your property.  They retain water that may feed the local creek and provide habitat for birds and other wildlife.

Q:  What activity is not allowed within a wetland without a permit?
A:  Specifically, Section 404 CWA allows the USACE the authority to regulate:

  • Dredging in a navigable water (33CFR Part 322)
  • Disposal of material in a navigable water or jurisdictional wetland (33CFR Part 322)
  • Any other activity that alters the course, condition, location, or capacity of a navigable water or jurisdictional wetland (33CFR Part 322)
  • Discharge of material in a navigable water or jurisdictional wetland (Tulloch Rule)
  • Mechanized land clearing in a water of the U.S. (Tulloch Rule)

In Tulloch versus the U.S. (1997), incidental discharge, including overspill from otherwise legal excavation activities was ruled as a regulated activity since it resulted in the discharge or displacement of soil in a wetland.

Q:  What activity IS allowed in a wetland?
A:  Clearing or cutting of surface vegetation, above the soil level is not a regulated activity unless the activity includes the removal or displacement of any soil or vegetative part below the surface of the soil.  Mechanized land clearing, including tree or plant uprooting, soil/stump grubbing, or bulldozing is a regulated activity.

Q
:  What is considered fill?
A:  A commonly used definition for fill is "solid material added to or redeposited in a wetland that would alter its cross-section or hydrological characteristics, obstruct flow patterns, change the wetland boundary, or convert the wetland to non-wetland."  This includes:  sod, sand, dirt, gravel, ash, debris, construction of buildings, parking lots, and other structures (except piers for an elevated walkway or bridge).  Slash or woody vegetation that originated in the wetland and is not impeding the flow of water is not considered "fill."