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The Importance of Due Diligence for Louisiana Wetlands Developments

Unique Louisiana ecology and regulations require knowledgeable due diligence environmental services

Federal EPA regulations define wetlands as areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, and bogs. They are located everywhere from Alaska through Florida, and impact many different parts of the United States.

To help add consistency to the process of determining if an area qualifies as a wetland and to delineate its boundaries, the United States Army Corps of Engineers (USACE) published the Federal Manual for Identifying and Delineating Jurisdictional Wetlands. The 1987 version of this manual is the one that is used by the Corps in determining wetlands boundaries for the purposes of issuing Clean Water Act Section 404 permits for any discharge or fill material that may impact these territories. For commercial real estate, this most often involves construction of new developments.

Additionally, the US Fish and Wildlife Service provides a National Wetlands Inventory map as a publicly available resource that provides detailed information on the abundance, characteristics, and distribution of US wetlands. This map provides a general idea of boundaries, but commercial real estate stakeholders and purchasers are best served by environmental assessments that can identify the cornerstone factors that define wetlands.

The purpose of wetlands regulations are to minimize environmental or ecological impact on wetlands or any species that inhabit them. For example, a 10-acre construction development may not be encroaching a wetlands territory, but there might be a stream that runs straight through the development and into the Mississippi River, carrying potential environmental contamination. Other developments may be located on wetlands themselves, or impact a protected species. There is an added risk if the development is simultaneously on low-lying FEMA flood zones. For Louisiana, this refers specifically to water-saturated coastal and swamp regions of Southern Louisiana. This constitutes 40-45 percent of the wetlands found in the lower States, and is the drainage gateway to the Gulf of Mexico for the lower Mississippi Regional Watershed. Wetlands also provide important protection from rising seas, making Louisiana one of the most critical wetland territories in the US.

Section 404 nationwide permits by USACE are required for construction that encroaches on wetlands territory, though specific permit regulations vary by state, and national permits vary by property size and impact. Some states such as MI, WI, NC and VA have strict state regulations for permitting and wetlands development impacting more than a certain area. Development permits for wetlands in Louisiana fall under the purview of the Army Corps of Engineers and national permitting. 

For new developments under a half acre (provided they are homes, shopping centers or public institutions), attaining a “general purpose” nationwide permit is a relatively straightforward process, involving the delineation of property boundaries and total acreage, highlighting any area of impact. 

For larger properties over half an acre, developers must provide meticulous environmental assessment, zoning and permitting. They have a number of options to mitigate issues that arise during a wetlands assessment. They can change the location of their development. They can change design plans in accordance with State or National regulations. They can mitigate the impact of potential contaminants or hazards. They can buy offsetting credits from a conservation compliance mitigation bank. Finally, they can employ due diligence services to meet guidelines or provide any necessary remediation or environmental restoration.

There are many factors to consider when developments are near or on wetlands, including familiarity with national and state wetlands ordinances, environmental regulations, experience in zoning, surveys, and a range of environmental assessment and remediation services. It is more important than ever for developers seeking to build near wetlands to engage an environmental professional with deep knowledge and understanding of Louisiana’s unique ecology, including obtaining Wetlands Professional in Training (WPIT)  through the Society of Wetlands Scientists Professional Certification Program.