Potential developers need to determine if any jurisdictional wetlands are present on the project site early in the process to ensure the selected area is buildable. Regulated lands include much more than marshes and swamps. Further, a recent Ninth Circuit decision held that artificially created wetlands, such as man-made ponds, may be subject to regulation. The past several years of wetlands regulation have been marked by controversy and confusion. Waters of the United States are defined to include wetlands.
States have parallel fill and removal laws.
In Oregon, it is necessary to file a joint application with the Division of State Lands and the Corps of Engineers when filling or removing material from jurisdictional wetlands. The U.S. Environmental Protection Agency has oversight authority over the Corps' decisions and may veto a permit granted by the Corps. The Corps has adopted a categorical exemption process for low impact projects. Whether a particular hydro project will qualify for a categorical exemption is judged on a case-by case basis. The trend has been to constrict nationwide permits in favor of narrowing the jurisdictional definition of wetlands.