Should I Buy A Property With Wetlands?

What is a wetland? Why are wetlands important? Can you build on wetlands? What is wetland delineation? Should I buy a property with wetlands? What to do with wetlands on your property? How do I go about cutting trees in wetlands? Abraham Lincoln was once asked, “How long do you think a man’s legs should be?” His simple answer was, “A man’s legs should be long enough to reach the ground.” In other words, be able to get the job done based on what job needs to be done.

Deciding whether to buy a property with wetlands is kind of like defining what is the perfect piece of hunting land and the answer depends on what the purchaser wants to use it for and what he/she likes and what are the ultimate goals.

Should it be uplands? Should it be predominately timber, farmland or a combination? Should it be flat or hilly? Should it border running water, have a pond or even wetlands?

The wetlands equation can be a little sticky in that there is some confusion and lack of knowledge about wetlands. If you hunt waterfowl, they are good. If you don’t, they can attract other wildlife but, depending on what you pursue, the jury is out. Some people like them. Some people think they are a waste of good space.

The presence of wetlands also impacts what you can do with and how you can enjoy the property. It can also impact how to go forward with your development plans.

Regulations and rules for dealing with wetlands can be a bit confusing and involved.

To shed some light on this scenario and help answer the question “should I buy a property with wetlands,” Huntin’ Land podcast co-host Clint Flowers and I interviewed Craig Martin, senior scientist at Wetland Sciences, Inc based in Pensacola, Fl and realtor Angelo DePaola from the Coastal Connection in Orange Beach, Al.

Clint and I are experienced land professionals who specialize in hunting and recreational property, many times that include wetlands. Both Martin and DePaola have extensive experience dealing with property that feature wetlands and know what you can, cannot and should (or should not) do with them.

Just to clarify, I asked Martin, by specific definition, what exactly is a “wetland”?

“The simple definition of a wetland is really just a transition from a terrestrial to an aquatic environment from a higher land down into a river floodplain. Simplified, the regulatory definition is hydric soil that supports hydrophilic vegetation that need their feet wet some or all of the time,” Martin said. “A wetland can form as a function of a river or stream, high groundwater areas and lowlands where water comes within 18 inches of the surface for 30 consecutive days.”

Martin said that wetlands are really the “kidneys” of the hydrologic system for the property and act like sinks and wet sponges for pollutants and help stop storm water flood events. That slowing of water movement and filtering results in less erosion and improved water quality.

“They sequester pollutants to make sure they don’t get into the surface water and are beneficial to streams, rivers, ponds and reservoirs,’ Martin pointed out. “Coastal wetlands act as nurseries for trout, shrimp, crabs and other commercial and recreational species”

DePaola emphasized that prospective property owners on the coast need to be cognizant of the fact that wetlands don’t necessarily have to just be a shoreline scenario. A prospect while walking a piece of property may find a wetland that exists because of something as unlikely as someone digging a drainage ditch across the property which wasn’t wetlands before but now it is. He suggests a “shovel test” and keeping an eye out for palmettos.

“You can bring a shovel and if you dig and get nice salt and pepper dirt, you are probably not looking at a wetland. If you get a lot of darker soil, you probably are,” DePaola said. “Sometimes your neighbors dig out back behind their house without knowing that would DePaola affect your property.”

“Also, I’ve learned that if you see a lot of palmettos, you’re in uplands, not wetlands.”

One of the services that Wetland Sciences, Inc offers is a ‘walk-along” on a piece of property to identify whether it is or is not an official wetland and to bring a potential buyer up to speed in terms of future developments and going forward.”

“It’s only a couple of hundred bucks to go out with Craig or another WS professional, find out what you have, what you can and cannot do and get some good peace of mind in terms of what you are buying,” DePaola said.

DePaola pointed out that having wetlands, especially on coastal property, isn’t all dome and gloom and while many property owners want to put up seawalls and white sandy beaches nothing is forever on the Gulf Coast in terms of erosion and wetlands do offer certain benefits.

“I’m a big fan of our natural flora and fauna and when you’re up on the water like that with some grasses and it makes for easy water access, better fishing, shrimping and crabbing and it is going to keep your property from eroding. I think it makes for a better overall natural environment,” he noted. “Not everyone wants white sandy beaches and seawalls.”

When it comes to permitting for wetlands, the big elephant in the room is the “dredge and fill” process, which is addressed by the Clean Water Act and section 404 regulations. The guidelines and permit process is overseen and enforced by the U.S. Army Corps of Engineers and either Florida or Alabama state departments. In addition, there are local ordinances and regulations that may or may not come into play. It can become very complicated depending on what is entailed.

“If you have a waterfront lot and you want to cut a tree or two out of a wetland for a view corridor you can do that without any permit, although there may be local ordinances but there is nothing required from the state,” Martin pointed out. “When it comes to larger scale projects for agriculture and silviculture it is a different thing.”

Flowers, who deals in larger tracks of agricultural land and timber tracks pointed out that it is ok to log a wetland area such as a cypress pond or area, without a permit as long as you don’t try to fill it in or stop it from being a wetland.

Martin agrees but advises foresters to keep a good set of records.

“The big thing with the silvicultural exemptions is that the foresters need to keep and maintain their records that designate those areas for the purpose of managing the tract. If you are managing 600 acres and cutting timber, planting trees and putting in access roads, culverts and stream crossings whose are exempt right now. Down the road, if the classification of the property changes, say to residential, those crossing may have to be permitted,” Martin said. “Agricultural property is the same but it is a lot more intrusive to the wetlands and it is very hard to come back to find those areas that have been converted.”

Flowers and Martin agreed that in terms of agricultural land, often farmers can make significant revenue by working around wetlands by enrolling those areas in the Wetlands Reserve program (WRP). The program pays farmers for allowing those wetlands to remain as they are and even allow improvements to enhance the resource. The compensation may be more than the return from “rowing” the parcel.

How about building a pond out of a wetland? Can you do a little dredging, construct a dam and push some water back and build a pond for swimming and/or fishing?

Martin explained that the rules for constructing a pond in a wetland is a continuously changing deal in terms of U.S. Corp rules and is becoming more and more connected with water flow and movement on a larger geographical basis.

“Within the last 10-15 years the Corps started viewing the traditional dams as being detrimental to the streams whereas you’re changing a flowing system into a lake system or an open water system. Now they are making those impoundment owners purchase credits for the streams that are lost and it can become very expensive,” Martin said.

“But digging out a cypress dome, on the other hand, if it is totally isolated, will be a non-regulated activity,” Martin pointed out. “If you had a depression in your property and wanted to make that open water, you could excavate that, and that water table will still be there. There’s some confining layer that’s keeping the water there. And as long as that water system doesn’t depart, that basin, it’s not regulated.”

The bottom line is that a landowner or someone who making themselves, “should I buy a property with wetlands,” no matter the size or type, is best served to bring somebody out on their property and really look at it with “boots on the ground”. While someone can view layered aerial maps of properties, they often can’t identify wetlands.

“Boots on the ground is a necessary and it’s cheap insurance and a small wetland can be a couple of hundred bucks for us to go out and give you actual locations of the jurisdictional wetlands and the regulatory nature of them,” Martin said.

The real bottom line question is can you actually build on a wetland and, is it worth the pain and the cost?

“Wetlands can generally be used for development and tidal marshes are the most difficult because they provide the most important functions in terms of the commercial and recreational fisheries and there is not a lot of mitigation available,” Martin explained. “Wetlands can physically be permitted for impact and some are more costly than others and you look at the small intricacies that either make a property worth permitting or left alone, like a stream running under your house.”

DePaola points out that the bottom line for wetland land mitigation and home construction is understanding what the cost of the project is going to be and how much you are actually going to be able to mitigate and have reasonable expectations.

“If a person has a lot with wetlands on it and they want to turn the whole thing high and dry they are probably not going to be able to get a permit for that,” DePaola noted.

“Wetlands are regulated on the sequential review of avoidance, minimization and then mitigation. First, they want you to avoid wetlands to the most extent practicable. Then they want you to minimize your impact. And after that comes mitigation,” Martin concluded. “We can help on all three fronts.”

When it comes to wetlands there is no “one-size fits all” silver bullet. The one reality that we all agree on is that if you are asking yourself, “should I buy a property with wetlands,” it is in your best interest to retain a professional to walk the property and have boots on the ground for a legitimate and realistic assessment. If you own property that has a wetland it is in your best interest to hire someone who has a background in environmental science, knows how to deal with the permitting process and can keep you in compliance.