Checklist · Environmental
Securing a Water Right, a Wetlands Permit, or a Conservation Easement: A Practical Checklist
33 U.S.C. § 1362
- Type
- Checklist
- Jurisdiction
- National
- Date
- 2024-03-26
- Topic
- Environmental
This checklist walks through three related processes that people undertaking work near water routinely need. The first sequence covers obtaining or transferring a water right, from confirming which allocation system governs through the application, protest, and change-of-use proceedings. The second sequence covers wetlands permitting from delineation and jurisdictional determination through the avoid-minimize-mitigate analysis, permit track selection, companion approvals, and administrative appeal. The third sequence covers granting a conservation easement, including appraisal, baseline documentation, mortgage subordination, and the drafting provisions that determine whether the instrument and the tax deduction hold up. Each sequence is ordered so that the cheap, decisive steps come before the expensive ones, and each flags the deadline or omission that most commonly destroys the outcome. A final section covers what to do when an enforcement notice arrives.
Securing a Water Right, a Wetlands Permit, or a Conservation Easement: A Practical Checklist
Environmental > Water, Wetlands, and Conservation | Published 26 March 2024 - Updated 2 March 2025 | UpLaw - uplaw.us
⭐ Every sequence here is arranged the same way: the cheap questions that can kill the project come first. A $3,000 delineation that ends a deal has saved more money than any permit ever earned.
Sequence A — Water rights
A1. Determine which system governs
☐ Identify the state and whether it follows riparian, prior appropriation, or a hybrid ("California doctrine") system for surface water. ☐ Identify the groundwater doctrine separately — it is frequently different from the surface rule in the same state. ☐ Determine whether the source is a watercourse, a spring, diffuse surface water, or groundwater. The classification changes the applicable rules entirely. ☐ ⚠ Determine whether the groundwater is hydraulically connected to a surface source. Connected wells are increasingly administered under surface priority. ☐ Identify any management district, critical area, or basin closure covering the source. ☐ Check for an active or completed general stream adjudication in the basin. ☐ ⚠ Check for federal or tribal reserved rights. They may be senior to everything and absent from state records.
A2. If a right already exists — verify it
☐ Obtain the decree, certificate, or permit itself, not a description of it. ☐ Record the priority date, rate (cfs or gpm), annual volume, point of diversion, place of use, type of use, and season of use. ☐ Trace the chain of title to the right; confirm it conveyed with prior deeds. ☐ Confirm the right is not subject to a pending change or protest. ☐ ⚠ Document actual historical use — diversion records, aerial imagery showing irrigated acreage, power bills for pumping, crop reports. Non-use for the statutory period can forfeit the right. ☐ Obtain the call history on the source for the last ten to twenty years. ☐ Determine whether the right is subject to a compact or apportionment limiting deliveries. ☐ Check for liens, leases, and contractual commitments encumbering the right.
A3. To obtain a new appropriative right
☐ Confirm unappropriated water exists — many sources are closed to new appropriation. ☐ Prepare and file the application to appropriate with the state engineer or water board. ☐ Specify the beneficial use, the amount reasonably necessary, and the works. ☐ Publish notice and serve any required parties. ☐ Calendar the protest period and respond to protests. ☐ Obtain the permit to appropriate, and calendar its construction and proof deadlines. ☐ Build the works and apply water to beneficial use before the deadline. ☐ File proof of beneficial use; obtain the certificate. ☐ ⚠ Docket the extension deadlines. Permits lapse, and a lapsed permit loses its priority date.
A4. To change a right (point, place, use, or timing)
☐ Determine what change is needed and whether it requires approval — nearly all do. ☐ Retain an engineer to quantify historical consumptive use, not decreed diversion. ☐ Model return flow effects on downstream appropriators. ☐ Design mitigation or augmentation for depletions the change would cause. ☐ File the change application with the supporting engineering. ☐ Serve and publish; calendar the protest deadline. ☐ Negotiate stipulations with protestants — most changes settle on terms. ☐ ⭐ Expect the approved amount to be materially less than the paper right. Budget the transaction on consumptive use.
A5. Riparian and regulated-riparian states
☐ Confirm the parcel abuts the watercourse and is within the watershed. ☐ Determine whether the withdrawal exceeds the permit threshold. ☐ File the withdrawal permit application with the projected quantity, timing, and purpose. ☐ Assess the reasonableness of the use against other riparians — purpose, value, harm, and alternatives. ☐ ⚠ Do not assume the permit immunizes you from a private claim by another riparian. ☐ Consider whether domestic uses downstream will be affected; they usually have priority.
Sequence B — Wetlands and waters permitting
B1. Before you buy or commit
☐ Pull the National Wetlands Inventory map and the soil survey hydric soil ratings for the parcel. Both are free and take minutes. ☐ Pull historic aerial imagery back to the earliest available year. ☐ Walk the site after a wet period and photograph everything. ☐ ⚠ Make the purchase contract contingent on a satisfactory delineation and jurisdictional determination. ☐ Check whether the parcel lies in a state-regulated wetland or buffer zone; state programs operate independently of federal jurisdiction. ☐ Check the flood map, the coastal zone boundary, and any local stream buffer ordinance.
B2. Delineation
☐ Retain a qualified wetland scientist familiar with the applicable regional supplement. ☐ Schedule fieldwork during the growing season, ideally in a normal or wet period. ☐ Require the three-parameter analysis: hydrophytic vegetation, hydric soils, wetland hydrology. ☐ Require data forms, a georeferenced boundary, photographs, and a written report. ☐ Have the boundary surveyed and flagged, then tied into the site plan. ☐ ⚠ A delineation is an opinion until the Corps concurs. Budget for the possibility that it moves.
B3. Jurisdictional determination
☐ Decide between a preliminary JD (faster; treats waters as jurisdictional) and an approved JD (official; reviewable). ☐ ⭐ Request an approved JD if you intend to contest jurisdiction. Under Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, an approved JD is final agency action subject to judicial review. ☐ Submit the delineation, maps, photographs, and a jurisdictional analysis. ☐ Address the Sackett standard directly: is there a continuous surface connection to a relatively permanent body of water connected to traditional navigable waters? Sackett v. EPA, 598 U.S. 651. ☐ Address the earlier framework only as history — Riverside Bayview, 474 U.S. 121; SWANCC, 531 U.S. 159; Rapanos, 547 U.S. 715. ☐ Definitions are at 33 C.F.R. part 328; statutory definitions at 33 U.S.C. § 1362. ☐ Calendar the five-year expiration of an approved JD. ☐ ⚠ A negative federal JD is not a state approval. Verify the state program separately.
B4. Avoid, minimize, mitigate
☐ Run the alternatives analysis required by 40 C.F.R. part 230. ☐ ⭐ Determine whether the project is water-dependent. If it is not, practicable alternatives are presumed to exist and the burden is yours to rebut. ☐ Redesign to avoid — shift the pad, cluster the units, reduce the footprint, relocate the access. ☐ Minimize what remains — bridge instead of culvert, reduce fill slopes, add buffers, restrict construction timing. ☐ Quantify remaining impacts in acres and linear feet, by resource type. ☐ Price compensatory mitigation under 33 C.F.R. part 332, in preference order: mitigation bank credits, in-lieu fee credits, permittee-responsible mitigation. ☐ Confirm the bank's service area includes your site. ☐ ⚠ Get the mitigation price in writing before committing to the project. Credit prices vary enormously and forested wetland ratios are high.
B5. Select the permit track
☐ Determine whether a nationwide permit covers the activity — 33 C.F.R. part 330. ☐ Confirm the impact is within the acreage limit and check the pre-construction notification threshold. ☐ Review every general condition, including species, historic properties, migratory birds, tribal rights, and water quality conditions. ☐ Check for regional conditions added by the district and the state. ☐ If limits are exceeded, prepare for a standard individual permit: public notice, comment period, alternatives analysis, public interest review under 33 C.F.R. part 320, and processing under 33 C.F.R. part 325. ☐ Determine whether structures in navigable waters require a section 10 permit — 33 U.S.C. § 403, 33 C.F.R. part 322. Refuse deposits are separately prohibited by 33 U.S.C. § 407. ☐ Authority for the fill permit itself: 33 U.S.C. § 1344; the underlying prohibition is 33 U.S.C. § 1311, and the statute's objective is stated at 33 U.S.C. § 1251.
B6. Companion approvals
☐ Section 401 water quality certification — 33 U.S.C. § 1341, 40 C.F.R. part 121. ⚠ Calendar the one-year waiver period. Conditions become federal permit conditions — PUD No. 1, 511 U.S. 700. ☐ Applicable water quality standards — 33 U.S.C. § 1313, 40 C.F.R. part 131. Check whether the receiving water is impaired and subject to a TMDL. ☐ Endangered Species Act consultation — 16 U.S.C. § 1536, 50 C.F.R. part 402. Screen for listed species using 50 C.F.R. part 17; listing procedures at 50 C.F.R. part 424; designation authority at 16 U.S.C. § 1533. ☐ If take is unavoidable, pursue an incidental take permit and habitat conservation plan — 16 U.S.C. § 1539. Prohibited acts at 16 U.S.C. § 1538; definitions at 16 U.S.C. § 1532; penalties at 16 U.S.C. § 1540; purposes at 16 U.S.C. § 1531; state cooperation at 16 U.S.C. § 1535. Critical habitat must first be habitat — Weyerhaeuser, 586 U.S. 9. ☐ Coastal zone consistency — 16 U.S.C. § 1456; program provisions at 16 U.S.C. § 1451, 16 U.S.C. § 1452, 16 U.S.C. § 1455. ☐ Historic properties review — 16 U.S.C. § 470. ☐ NEPA review where federal action is involved — 42 U.S.C. § 4321, 42 U.S.C. § 4332. ☐ NPDES construction stormwater permit — 33 U.S.C. § 1342, 40 C.F.R. part 122. ☐ Drinking water source protection where a wellhead or intake is nearby — 42 U.S.C. § 300f, 42 U.S.C. § 300g-1, 40 C.F.R. part 141; injection wells under 42 U.S.C. § 300h. ☐ Local grading, floodplain, stormwater, and buffer permits. ☐ ⚠ Septic and subsurface discharges near surface water — under County of Maui, 590 U.S. 165, a discharge through groundwater can require an NPDES permit if it is the functional equivalent of a direct discharge.
B7. During and after construction
☐ Post the permit and keep the approved plans on site. ☐ Install and maintain erosion and sediment controls before disturbance. ☐ Follow timing restrictions for spawning, nesting, and migration windows. ☐ Keep the monitoring and reporting schedule; missed reports are independent violations. ☐ Complete and record any long-term protection instrument for mitigation areas. ☐ Fund the financial assurance required for permittee-responsible mitigation. ☐ Submit as-built and monitoring reports on schedule for the full monitoring term. ☐ ⚠ Mitigation obligations run with the land. Disclose them on any sale.
B8. If you disagree with the Corps
☐ Request reconsideration informally first; many disputes resolve at the district level. ☐ File the administrative appeal under 33 C.F.R. part 331 — available for permit denials, declined individual permits, and approved JDs. ☐ Calendar the appeal deadline stated in the notification of appeal process. ☐ Preserve every objection in writing, particularly to exaction-type conditions. ☐ For conditions demanding property or money, frame the Nollan nexus question — 483 U.S. 825 — and the Dolan rough proportionality question — 512 U.S. 374. ☐ For a claim that regulation has destroyed value, evaluate Penn Central, 438 U.S. 104, and Lucas, 505 U.S. 1003. ⚠ Expect the whole parcel to be the denominator. ☐ Consult counsel before seeking an injunction; the standard from Winter v. NRDC, 555 U.S. 7, is demanding.
Sequence C — Granting a conservation easement
C1. Decide whether it fits
☐ Identify the conservation values actually present: habitat, working farmland, forest, scenic open space, historic resource, public recreation. ☐ Match them to a qualified conservation purpose under 26 U.S.C. § 170. ☐ ⚠ Confirm you can live with the restriction permanently. It binds every future owner, including your children. ☐ Identify a qualified holder — a land trust or governmental body with the capacity and the intention to monitor and enforce. ☐ Ask the holder about its stewardship endowment, its monitoring practice, and its enforcement history. ☐ Determine the state enabling statute's requirements and any recording formalities. ☐ ⚠ Walk away from anything marketed as an investment. Syndicated easement deals are a listed abusive transaction with severe penalty exposure.
C2. Valuation and appraisal
☐ Retain a qualified appraiser with conservation easement experience — not the appraiser who valued the land for the bank. ☐ Require a before-and-after valuation with a credible highest-and-best-use analysis. ☐ ⚠ Confirm the "before" value reflects what could actually be built given zoning, access, utilities, soils, and wetlands. Inflated before-values are the core defect in abusive transactions. ☐ Account for enhancement to contiguous land you or a family member owns; it reduces the deduction. ☐ Obtain the appraisal within the statutory window relative to the contribution date. ☐ Have counsel review the appraisal before filing. ☐ Complete the required donee acknowledgment and appraisal summary.
C3. Baseline documentation
☐ Prepare a baseline documentation report describing the property's condition at the time of grant. ☐ Include dated photographs from fixed, mapped photo points. ☐ Include maps: topography, soils, hydrology, vegetation cover, existing structures, roads, and utilities. ☐ Include an inventory of existing improvements and uses. ☐ Have both the grantor and the holder sign the report and acknowledge its accuracy. ☐ ⭐ Without a signed baseline, nobody can ever prove what changed. This single document decides most enforcement disputes decades later.
C4. Title, debt, and third parties
☐ Run a title search; identify every mortgage, lease, mineral reservation, easement, and covenant. ☐ ⚠ Obtain a written subordination from every lender. Unsubordinated debt defeats perpetual protection and the deduction. ☐ Address severed mineral interests — a third party's right to extract can defeat the conservation purpose. ☐ Address existing leases (agricultural, hunting, cell tower, billboard). ☐ Address utility easements and any planned corridors. ☐ Confirm no pending condemnation or road project affects the property.
C5. Drafting
☐ Write specific purpose recitals; they govern every future ambiguity. ☐ Define reserved rights exactly: how many structures, of what size, within which mapped envelopes, for what use. ☐ List prohibited uses: subdivision, commercial development, surface mining, dumping, filling of wetlands, off-site signage. ☐ Specify permitted agricultural and forestry practices, and whether a management plan is required. ☐ Address public access — required if the recreation or education purpose is claimed, optional otherwise. ☐ Include an amendment provision with a substantive standard, not unlimited discretion. ☐ ⚠ Include a compliant extinguishment and proceeds clause giving the holder a proportionate share on condemnation or judicial termination. Defective clauses have cost donors the entire deduction. ☐ Provide for assignment only to another qualified holder bound by the same terms. ☐ Provide remedies: injunctive relief, restoration, damages, and fees. ☐ Address monitoring rights, notice, and access. ☐ Address stewardship funding — a contribution to the holder's endowment is customary. ☐ Record the easement, and record the subordinations with it.
C6. Program alternatives to consider first
☐ Agricultural conservation easement programs — 16 U.S.C. § 3839 — pay for enrollment rather than relying on a deduction. ☐ ⚠ Wetland conservation compliance — 16 U.S.C. § 3821, 16 U.S.C. § 3822 — already restricts conversion for producers receiving farm program benefits. ☐ Rail-banked corridors — 16 U.S.C. § 1246 — if a former rail line crosses the property, the reversionary question may be worth more than the easement. ☐ State and local purchase of development rights programs.
Sequence D — If an enforcement notice arrives
☐ ⚠ Stop the activity immediately. Every additional day is a separate violation under 33 U.S.C. § 1319. ☐ Preserve everything — plans, contractor communications, photographs, invoices, equipment logs. ☐ Photograph and survey the current condition before anyone alters it. ☐ Do not perform "voluntary restoration" without counsel; it can be treated as an admission and can cause new violations. ☐ Identify the agency and the authority claimed: Corps, EPA, state agency, or local government. ☐ ⭐ Note that a compliance order is reviewable. Sackett v. EPA, 566 U.S. 120. ☐ Evaluate whether the waters are jurisdictional at all under Sackett, 598 U.S. 651. ☐ Determine whether the activity qualified under an existing general permit or a statutory exemption. ☐ Calendar every response deadline in the notice. ☐ Assess exposure to a citizen suit under 33 U.S.C. § 1365; check whether a sixty-day notice letter has been served. Standing is broad — Laidlaw, 529 U.S. 765. ☐ If a spill is involved, comply with immediate notification duties under 33 U.S.C. § 1321. ☐ Determine the review forum; certain EPA actions go directly to the courts of appeals under 33 U.S.C. § 1369. ☐ Consider after-the-fact permitting as a resolution path — it is common and often the cheapest outcome. ☐ Explore a consent order with a restoration and mitigation plan. ☐ ⚠ Do not talk to investigators without counsel if the conduct was knowing. Criminal exposure exists.
The deadlines that end cases
| Deadline | Consequence of missing it |
|---|---|
| Statutory non-use period for an appropriative right | Forfeiture of the right |
| Water permit construction and proof deadlines | Lapse; loss of priority date |
| Protest period on an application or change | Loss of the right to object |
| Corps administrative appeal deadline — 33 C.F.R. part 331 | Loss of administrative review; possible exhaustion problem |
| Approved JD five-year expiration | Must re-verify before relying on it |
| Section 401 one-year certification period | ⭐ Waiver — the state loses its conditions |
| Citizen suit sixty-day notice | Suit dismissed as premature |
| Appraisal timing window for the deduction | Deduction disallowed |
| Mitigation monitoring report schedule | Independent permit violations |
Related resources
For the doctrinal background behind every step above, see water, wetlands, and conservation. For a plain-language overview, see who owns the river. For forms, letters, and worksheets, see the water rights and wetlands permitting toolkit.
Adjacent problems:
- Drainage and flooding between neighbors — neighbor law, good fences, resolving a boundary or encroachment dispute, and the neighbor and boundary dispute toolkit.
- Contamination — environmental contamination and cleanup, investigating contamination and allocating cleanup liability, the plume under the property, and the environmental contamination and cost recovery toolkit.
- Land use approvals — zoning and land use, what you may build and who decides, seeking a variance, permit, or rezoning, and the zoning variance and land use appeal toolkit.
- The purchase itself — buying and selling a home.
⭐ One final rule that applies to all three sequences: write down what the agency told you, on the day it told you, and confirm it in a short email. Water permitting runs on institutional memory that turns over every few years, and your file is the only reliable record.
Quick reference: who to call, in what order
| Situation | First call | Second call |
|---|---|---|
| Considering a purchase with water on it | Wetland consultant | Real estate counsel |
| Delineation says wetlands are present | Corps district regulatory office | Environmental counsel |
| Buying a western ranch "with water" | Water engineer | Water lawyer in that state |
| Received a Corps or EPA notice | Environmental counsel | ⚠ Nobody else, until counsel says so |
| Neighbor's grading is flooding you | Surveyor | Litigation counsel |
| Want to preserve family land | Land trust | Tax counsel and appraiser |
| Well ran dry after a neighbor drilled | State water agency | Water lawyer |
| Permit condition seems excessive | Land use counsel | Appraiser, if a taking claim is contemplated |
A one-page pre-application self-audit
Answer these before spending money on an application. If more than two answers are "unknown," you are not ready to file.
☐ What exactly do I want to do, in acres, linear feet, and cubic yards? ☐ Are the waters affected federally jurisdictional under Sackett? ☐ Are they state-regulated regardless? ☐ Is the project water-dependent? ☐ What is the least-impact design that still works economically? ☐ What does mitigation cost, and is a bank available in my service area? ☐ Which general permit, if any, covers this? ☐ Does the state have a year to act on certification, and when does that clock start? ☐ Are listed species or critical habitat present? ☐ Is a historic property or tribal resource implicated? ☐ Who else will comment — neighbors, watershed groups, the local government? ☐ What is my schedule if this becomes an individual permit instead? ☐ ⚠ What happens to the project if the answer is no?
⭐ That last question is the one people skip, and it is the one that matters. A project with no fallback is a project that will accept any condition the agency proposes, which is exactly the position from which exactions become impossible to challenge.