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Introduction || Basic Principles || Key Players || Federal Regulations || WI Regulations || Wetland Mitigation
Basic Regulatory Principles: What every wetland advocate needs to know.
The following eight wetland regulatory principles encompass the essence of both Wisconsin and federal wetland laws. Keep these principles in mind as you craft your response to wetland development proposals. For more in-depth information on all of these principles, click on the links to "Key Players" and "Federal Regulations" and "Wisconsin Regulations" provided in the submenu above.
Principle #1 - Discharge of Dredged & Fill Material:
Construction activities that result in the discharge of "dredged and fill material" require state, and sometimes federal, permits. Examples of dredged and fill material include asphalt, concrete, wood chips, sand and gravel.
Permit requirements typically also apply to activities that result in soil disturbance substantial enough to replace portions of wetlands with dry land or change the bottom elevation of a wetland for any purpose.
Removal of wetland trees and vegetation do not typically require permits unless the activity results in substantial soil displacement or disturbance.
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 Principle #2 - Wetland Delineation:
Authorization of construction activity in wetlands requires verification of the wetland boundaries through a process called wetland delineation. Delineations must be performed by trained professionals using methods outlined in the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual.
 If you believe a proposed construction activity will result in wetland fill, but local decision-makers or the developer claim there are no wetlands, or fewer acres of wetlands, on the property than you’ve observed, you should ask to see a copy of the wetland delineation report. If no such report exists, share (in writing) what you know about wetland regulatory requirements with project proponents and contact state and federal wetland regulatory staff* to request a site visit.
* Click on "Key Players" on the submenu above to locate state and federal wetland regulatory staff in your county.
Principle #3 - Alternatives Analysis:
With few exceptions, applicants for permits to discharge dredge or fill material in wetlands must demonstrate that they have considered all practicable alternatives to first avoid and then minimize wetland impacts. No discharge shall be permitted if a practicable alternative to meet the basic project purpose exists that is less damaging to the aquatic environment.
According to case law, practicable alternatives include alternative sites and alternative project designs that reduce the footprint of the project. Modified designs that meet the basic project purpose are considered practicable even if they decrease the profitability of a project.
Principle #4 - Jurisdiction:
The state of Wisconsin regulates construction activities in all wetlands, regardless of wetland size, type or location. In contrast, the federal government’s wetland regulatory authority extends only to wetlands considered "waters of the United States." Federal guidelines clarifying the circumstances under which wetlands are to be regulated as waters of the United States are available on the wetlands pages of EPA's website, however as a general rule federal regulations apply to wetlands adjacent to, or with a hydrologic connection to, "navigable-in-fact" waters. These wetlands may be described as "federally-regulated," "navigable," or "jurisdictional" wetlands. The determination on whether a wetland in a proposed construction area falls under federal jurisdiction is made by the U.S. Army Corps of Engineers.*
The Corps issues a "concurrence letter" describing if and why the wetland does or does not meet the definition of "waters of the United States."
* For more details, click on "Federal Regulations" and "Wisconsin Regulations" links in the submenu above.
 Principle #5 - Mitigation:
Wetland compensatory mitigation is defined as "the restoration, creation, enhancement, or in exceptional cases preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable impacts."
Wetland mitigation is required for all unavoidable impacts to federally regulated wetlands that are greater than 10,000 square feet (0.23 acres). The state never requires wetland mitigation but may consider mitigation proposals to offset the unavoidable impacts to wetland functional values under some circumstances.*
The promise of mitigation NEVER alleviates an applicant’s obligation to first avoid and then minimize wetland impacts. Click here to refer to interagency guidelines for compensatory mitigation for permitted wetland losses in Wisconsin.
* For more information, click on "Wetland Mitigation" in Wisconsin on the submenu above.
Principle #6 - Sequencing:
Wetland regulators often refer to the alternatives analysis and mitigation proposal development process as "sequencing." The term derives from the fact that, by law, applicants must avoid, minimize and sometimes mitigate wetland impacts, in that order.
Sequencing for federal permits with wetland fill greater than 10,000 square feet:
Avoid → Minimize → Mitigate
Sequencing for federal permits with wetland fill less than 10,000 square feet and covered under a general permit*:
Avoid → Minimize
Sequencing for Wisconsin permits for all wetland fill:
Avoid → Minimize
* Information on Individual vs General Permits can be found by clicking on "Federal Wetland Regulations" on the submenu above.
Common ways project proponents fail to design their projects with sequencing requirements in mind include:
- They assume that as long as they agree to restore wetlands elsewhere (i.e., mitigate) for the ones they propose to fill they should receive a permit.
- They assume that the law does not require steps to avoid or minimize impacts to small or "low quality" wetlands.
You can help reduce the wetland impacts of construction activities in your community by attending local planning meetings and reminding elected officials and local developers about the sequencing requirements under federal and state wetland regulations. Emphasize that they will increase the likelihood of project approval and decrease the amount of time and expense required to obtain state and federal permits if they design their projects to avoid and minimize wetland impacts.
Principle #7 - Significant Impacts:
No discharge should be allowed that would result in a significant adverse impact to: the nation’s waters (federal regulations) or wetland functional values and water quality (WI regulations), or have other significant environmental consequences (WI regulations).
In determining significance of impacts, regulators take a variety of factors into consideration, including effects on the structure and function of the wetlands and the cumulative (past and present) and secondary (reasonably foreseeable) impacts in the project area.
Principle #8 - Public Input and Public Interest Reviews:
Your input matters. The wetland permit process at both the federal and state level requires a public interest review. Projects found to be detrimental to the public interest should not receive permits, and your input may persuade decision makers to address public interest considerations more thoroughly.
The most effective public input on wetland permit decisions provides: 1) expertise on the history or functions of the wetland of concern; 2) information relevant to the alternatives analysis; or 3) insights on the evaluation of the significance of the project impacts.
Though it is always best to provide input in response to a formal public comment opportunity, do not hesitate to contact decision-makers with questions, concerns and insights at any stage in the project review.* Your input will always be considered and may provide information that regulatory staff could not have obtained themselves. Wetland regulators may be under intense pressure from project proponents to approve permits, but their job is to represent the public’s interest in wetland and waterway protection. They can only do this if they hear from you and your neighbors.
* For more details about public input opportunities for wetland permit decisions, click on the "Federal and State Wetland Regulations" menu item above. Tips and tools for crafting persuasive comment letters and public testimony can also be found on the "Wetland Protection Strategies" pages available through the menu above.
> Click here to continue to the discussion of Key Players in the wetland permitting process.
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