Aater, glad you brought this up and hopefully I can provide some useful information on wetlands issues as they pertain to development and real estate investment. First off, let me preface this with the facts that the follow is:
-My opinion based off of desktop observation and experience
- This is not based on a field survey which would be required to really give a definitive answer on if this feature is "potentially jurisdictional"
- I am giving this opinion in my capacity as a RE Investor, not in a professional capacity with my day job, although we can help folks with that!
Some background on me: ~8 years delineating, permitting disturbance and development in, and writing mitigation plans for wetlands in TX and the Gulf Coast region for several environmental firms, an energy company, blah blah blah. I've done it for a while, but there are some much more experienced folks out there for sure (30+ years!).
First, lets talk "wetlands". "Wetlands" are regulated on two levels: federal and state (typically, sometimes also on city/county levels in some areas). In Texas, all wetland regulation is delegated to the federal government. The EPA is responsible for this, but delegates those powers to the Army Corps of Engineers ("USACE"). USACE, through regional offices, makes all the permitting and regulatory decisions regarding wetlands on the federal level.
Since Texas only regulates "wetlands" at the federal level, we can ignore that for now.
Why is "wetlands" in quotations? Well, not all wetlands are under the jurisdiction of USACE. They have to have all of a set if certain criteria to: A) Actually be classified as a "wetland" and; B) also be considered "jurisdictional" waterbodies under the Clean Water Act and fall under USACE purview.
What constitutes a wetland to the feds? It must have all three wetland criteria: Wetland Soils, Wetland Vegetation, and Wetland Hydrology. You could do a week-long course on any one of those three topics, so I'll leave it at that. Hire a professional delineator!
How can you tell if you might have an issue on your hands before you go out and get a field wetland delineation that in this case could be $1,200-$5,000? Here is what I looked at in my desktop review.
First, look at the National Wetland Inventory Mapper ("NWI" Mapper). This shows a good aerial view of the US and classifies things as wetlands or waterbodies based on remote sensing data. The NWI classification means absolutely nothing from a regulatory perspective and is notoriously spotty in accuracy, but it's a good first hint that there might be something there to look at if it shows a feature. See the screen grab below, it says Aater's place is a riverine ecosystem. Ha! https://fwsprimary.wim.usgs.go...
Second, aerial imagery. Google earth is your friend. Especially that handy historical imagery tool. Go through all the historical imagery to see if there has been any standing water there. If there has been one of more years, good chance you might have the three criteria (soils, veg, hydrology) there to at least call it a wetland.
Third, topographic maps. If you know how to read topos, look one up and see if the property generally drains to your area of concern. Is it a marked/named stream/river/lake with a "blue line"? Does it appear to drain and stop on the property, or continue to drain away and connect, perhaps to another stream, river, or lake? This is important later.
Based on these, I'd guess Aater has more of an "erosional feature" than a water body or wetland on his hands. At worst, it's a non-adjacent wetland or an "ephemeral" stream, one which only has surface flow during or immediately after precipitation events.
So currently, there is a rule recently implemented under the Trump admin that clarified the definition of what kind of water bodies might be jurisdictional and provided many exemptions for agricultural use properties. It is currently in effect and, due to rule changes procedures, will take significant time for the Biden administration to undoubtedly undo.
Under the current rules, "ephemeral" streams and non-adjacent wetlands are not considered jurisdictional. Because of that, I would guess that just about anything you did to develop on this feature would be legal until they change the rule back. Once that happens, it may fall into the ephemeral category and it would benefit you to have it looked at if you are going to alter or develop it.
However, under the prior rules even if it is an ephemeral stream, it must also have some sort of downstream connection to another jurisdictional water body to be considered jurisdictional itself. It appears it may from aerial and topo maps. My gut still says this is likely an erosional feature lacking some of the criteria to qualify as an ephemeral stream though (can't say for sure without a field survey).
Even if it is a wetland, you can still develop it from a regulatory perspective. It would likely easily fall under Nationwide Permit 29 ("NWP" 29). These are a set of "permits" that are basically pre-established frameworks that allow certain activities. NWP 29 still requires a field delineation and a Pre-Construction Notification or "PCN" be submitted and approved by the regional USACE office and it must be under 1/2 acre.
List of NWPs: https://usace.contentdm.oclc.o...
NWP 29: https://usace.contentdm.oclc.o...
From a non-professional standpoint, if you have any doubts at this point you should definitely seek out a professional. Wetland delineations for very large properties can get expensive, but for something like this it wouldn't be much more than other fees such as appraisal. Permitting services a little more.
In this case, I'd be much more concerned about the engineering and water/drainage control issues with developing here. If you build on it, you could essentially create a dam which may pond water on the northwest side, so consult an engineer before you develop to come up with a solution to divert flow around or underneath.
Whew, that's hard to condense.... Questions, anyone?
