Toolkit · Environmental
The Water Rights and Wetlands Permitting Toolkit
33 U.S.C. § 1362
- Type
- Toolkit
- Jurisdiction
- National
- Date
- 2023-10-25
- Topic
- Environmental
This toolkit collects the working documents for water rights, wetlands permitting, and conservation easements. It includes a water right verification worksheet, a consultant scope of work for a delineation, a request for an approved jurisdictional determination, an alternatives analysis outline that tracks the federal guidelines, a mitigation cost worksheet, a permit track selection matrix, a companion approvals tracker, a section 401 certification timing tracker, a Corps administrative appeal request, an enforcement response protocol with a holding letter, a drainage complaint letter to a neighbor, a conservation easement term sheet, a baseline documentation index, and a lender subordination request. Each item is drafted to be adapted rather than filed as written. Bracketed fields mark what must be supplied, and warnings mark the places where a small omission destroys the outcome.
The Water Rights and Wetlands Permitting Toolkit
Environmental > Water, Wetlands, and Conservation | Published 25 October 2023 - Updated 5 October 2024 | UpLaw - uplaw.us
⚠ These are templates, not filings. Water law is state law, Corps districts differ, and a form used without adaptation is worse than no form.
Tool 1 — Water right verification worksheet
| Item | Entry |
|---|---|
| State and governing doctrine (riparian / appropriation / hybrid) | |
| Groundwater doctrine, if different | |
| Source name and type (stream, spring, aquifer, diffuse) | |
| ⚠ Hydraulically connected to surface water? | ☐ Yes ☐ No ☐ Unknown |
| Decree, certificate, or permit number | |
| Priority date | |
| Rate (cfs / gpm) | |
| Annual volume limit | |
| Point of diversion (coordinates) | |
| Place of use (legal description) | |
| Type of use | |
| Season of use | |
| Chain of title to the right — instruments reviewed | |
| ⚠ Evidence of actual use, last 10 years | |
| Years of non-use identified | |
| Statutory forfeiture period in this state | |
| Call history on this source | |
| Basin closed to new appropriation? | ☐ |
| General stream adjudication pending or concluded? | ☐ |
| ⚠ Federal or tribal reserved rights in the basin? | ☐ |
| Compact or apportionment limits | |
| Management district / critical area designation | |
| Metering required? | ☐ |
| Liens, leases, or contracts encumbering the right | |
| Pending change or protest | |
| Estimated historical consumptive use | |
| ⭐ Transferable amount (consumptive use, not decreed rate) |
⭐ The last two rows are the transaction. A right decreed at 40 cfs may support a transfer of 12, and the difference is the deal.
Tool 2 — Delineation scope of work
SCOPE OF WORK — WETLAND DELINEATION
Property: [address, parcel ID, acreage] Client: [name] · Consultant: [firm]
1. Desktop review. National Wetlands Inventory mapping; NRCS soil survey with hydric ratings; USGS topography; FEMA flood mapping; historic aerial imagery from [earliest year] to present; prior permits or determinations affecting the property.
2. Field delineation. Routine determination under the Corps of Engineers Wetlands Delineation Manual and the [regional] supplement, applying all three parameters: hydrophytic vegetation, hydric soils, and wetland hydrology. Fieldwork to be performed during the growing season, in a period of normal or above-normal precipitation, with precipitation conditions documented.
3. Deliverables. Completed data forms for each sample point, paired upland and wetland; a written report with methods, findings, and a jurisdictional analysis addressing the standard in Sackett v. EPA, 598 U.S. 651; georeferenced boundary in shapefile and PDF; photographs from mapped photo points; flagged boundary suitable for survey pickup.
4. State analysis. A separate determination of whether any delineated feature is regulated under [state] law regardless of federal jurisdiction.
5. Support. Attendance at one site visit with the Corps and one meeting with the client; response to one round of agency comments.
Schedule: fieldwork by [date]; draft report within [ ] days; final within [ ] days of comments.
☐ ⚠ Do not accept a report without paired upland data points. They are how the boundary is defended. ☐ Require the consultant to state precipitation conditions relative to normal. ☐ Require the state-law analysis as a separate section.
Tool 3 — Request for an approved jurisdictional determination
[Date]
U.S. Army Corps of Engineers, [ ] District — Regulatory Division
Re: Request for Approved Jurisdictional Determination — [property, parcel ID, coordinates]
On behalf of [owner], we request an approved jurisdictional determination for the property described above. We do not request a preliminary determination.
Enclosed: a wetland delineation report with data forms and photographs; a georeferenced boundary map; historic aerial imagery; topographic and soil mapping; and a jurisdictional analysis.
Summary of position. The delineated features are described in the enclosed report. Applying the standard in Sackett v. EPA, 598 U.S. 651, Feature A [does / does not] have a continuous surface connection to a relatively permanent body of water connected to traditional interstate navigable waters. Features B and C are separated from the nearest such water by [describe: upland, road embankment, berm] and are fed by [precipitation / groundwater]. The applicable regulatory definitions appear at 33 C.F.R. part 328 and 33 U.S.C. § 1362.
We are available for a site visit at the District's convenience and will provide any additional information requested.
[Name, firm, contact]
☐ ⭐ Ask for an approved JD, in those words. It is the reviewable one — Army Corps of Engineers v. Hawkes Co., 578 U.S. 590. ☐ Calendar the five-year expiration when it issues. ☐ ⚠ A negative federal JD does not resolve state jurisdiction. Ask the state separately, in writing.
Tool 4 — Alternatives analysis outline
Track the guidelines at 40 C.F.R. part 230. This is the document that decides most individual permits.
SECTION 404(b)(1) ALTERNATIVES ANALYSIS
1. Basic project purpose. [State it narrowly enough to be meaningful and broadly enough to be honest. The Corps will test whether the stated purpose was defined to exclude alternatives.]
2. Overall project purpose. [The Corps' formulation, generally broader than the applicant's.]
3. Water dependency. The project [is / is not] water-dependent because [ ]. ⚠ If not water-dependent, practicable alternatives not involving special aquatic sites are presumed available and presumed less damaging. The following rebuts that presumption.
4. Geographic scope of the search. [Market area, service radius, or operational constraint justifying the boundaries.]
5. Alternatives considered.
Alternative Cost Logistics Technology Aquatic impact Practicable? Basis for rejection No action 0 Off-site A Off-site B On-site redesign 1 On-site redesign 2 Reduced scale Preferred 6. Least environmentally damaging practicable alternative. [Identify and justify.]
7. Minimization measures incorporated. [List each, with the impact reduction achieved.]
8. Compensatory mitigation. [Cross-reference the mitigation plan.]
☐ ⚠ "Practicable" means available and capable of being done considering cost, existing technology, and logistics in light of overall project purposes — it does not mean "as profitable as the preferred alternative." ☐ Document why parcels not owned by the applicant were or were not available; the Corps considers reasonably obtainable alternatives. ☐ Address the public interest factors under 33 C.F.R. part 320 separately.
Tool 5 — Mitigation cost worksheet
| Impact | Acres / linear feet | Resource type | Ratio applied | Credits required | Cost per credit | Total |
|---|---|---|---|---|---|---|
| Permanent fill — forested wetland | ||||||
| Permanent fill — emergent wetland | ||||||
| Permanent fill — scrub-shrub | ||||||
| Stream impact (linear feet) | ||||||
| Temporary impact | ||||||
| Buffer impact | ||||||
| Total |
☐ Preference order under 33 C.F.R. part 332: bank credits, then in-lieu fee, then permittee-responsible. ☐ Confirm the bank's service area covers the impact site. ☐ Confirm credit availability, in writing, before you commit to a design. ☐ For permittee-responsible mitigation, budget: land acquisition, design, construction, five to ten years of monitoring, adaptive management, long-term protection instrument, and financial assurances. ☐ ⚠ Forested and stream credits are the expensive ones. A design that avoids 0.2 acres of forested wetland can save more than the engineering cost of the redesign.
Tool 6 — Permit track selection matrix
| Question | Yes → | No → |
|---|---|---|
| Are any waters federally jurisdictional after Sackett, 598 U.S. 651? | Continue | Check state law, then stop federal analysis |
| Is fill or dredged material discharged? | 33 U.S.C. § 1344 applies | Check section 10 |
| Structures or work in navigable waters? | 33 U.S.C. § 403, 33 C.F.R. part 322 | — |
| Within a nationwide permit category? | 33 C.F.R. part 330 | Individual permit |
| Within the acreage limit? | Continue | Individual permit |
| Above the notification threshold? | Pre-construction notification | Proceed with documentation |
| All general and regional conditions met? | Continue | ⚠ Not authorized |
| Discharge of pollutants from a point source? | 33 U.S.C. § 1342, 40 C.F.R. part 122 | — |
| Discharge reaches surface water through groundwater? | Evaluate County of Maui, 590 U.S. 165 | — |
Processing procedures for individual permits are at 33 C.F.R. part 325; discharge-specific rules at 33 C.F.R. part 323; state-assumed programs at 40 C.F.R. part 232. The underlying prohibition is 33 U.S.C. § 1311 and the statute's objective is at 33 U.S.C. § 1251. Refuse deposits are separately barred by 33 U.S.C. § 407.
Tool 7 — Companion approvals tracker
| Approval | Authority | Applied | Deadline | Status |
|---|---|---|---|---|
| Section 404 permit | 33 U.S.C. § 1344 | |||
| Section 401 certification | 33 U.S.C. § 1341, 40 C.F.R. part 121 | ⚠ 1-year waiver | ||
| Water quality standards review | 33 U.S.C. § 1313, 40 C.F.R. part 131 | |||
| NPDES construction stormwater | 33 U.S.C. § 1342 | |||
| ESA consultation | 16 U.S.C. § 1536, 50 C.F.R. part 402 | |||
| Species screening | 50 C.F.R. part 17, 16 U.S.C. § 1533 | |||
| Incidental take permit / HCP | 16 U.S.C. § 1539 | |||
| Coastal zone consistency | 16 U.S.C. § 1456 | |||
| Historic properties review | 16 U.S.C. § 470 | |||
| NEPA document | 42 U.S.C. § 4321, 42 U.S.C. § 4332 | |||
| Drinking water source protection | 42 U.S.C. § 300g-1, 40 C.F.R. part 141 | |||
| Injection well authorization | 42 U.S.C. § 300h | |||
| State wetland permit | [state statute] | |||
| Local grading / floodplain / buffer | [ordinance] |
☐ ⚠ Track the section 401 clock separately and in writing. The state's failure to act within a year waives certification — the single most valuable deadline in this field. Certification conditions can be substantive, including instream flow requirements: PUD No. 1, 511 U.S. 700.
Tool 8 — Corps administrative appeal request
[Date]
U.S. Army Corps of Engineers, [ ] Division — Review Officer
Re: Request for Appeal — [File No.], [property]
[Applicant] requests appeal under 33 C.F.R. part 331 of the [permit denial / declined individual permit / approved jurisdictional determination] issued [date].
Reasons for appeal.
1. [Identify the specific factual finding challenged and the record evidence contradicting it.]
2. [Identify the regulatory criterion applied incorrectly, with citation to the governing part: 33 C.F.R. part 320, 33 C.F.R. part 323, 33 C.F.R. part 325, 33 C.F.R. part 328, or 40 C.F.R. part 230.]
3. [If jurisdiction is contested, state the Sackett analysis: 598 U.S. 651, and note that an approved JD is final agency action under Hawkes, 578 U.S. 590.]
4. [If a condition demands property or money, state the objection: no essential nexus under Nollan, 483 U.S. 825, and no individualized determination of rough proportionality under Dolan, 512 U.S. 374.]
No new information is submitted. This request is confined to the administrative record.
[Name, contact, signature]
☐ ⚠ File within the deadline in the notification of appeal process. It is short. ☐ ⚠ Do not submit new evidence — the appeal is on the record, and new material can void the request. ☐ Preserve every objection you may later litigate.
Tool 9 — Enforcement response protocol and holding letter
The first hour ☐ ⚠ Stop work. Penalties under 33 U.S.C. § 1319 accrue per day. ☐ Photograph and video current conditions from fixed points. ☐ Preserve plans, contracts, invoices, texts, and equipment logs; issue a written hold. ☐ Instruct staff and contractors to route all agency contact to counsel. ☐ Determine whether a spill reporting duty has attached under 33 U.S.C. § 1321.
The first week ☐ Identify the agency, the authority claimed, and the deadlines. ☐ Order an independent delineation and jurisdictional analysis. ☐ Evaluate general permit coverage and statutory exemptions. ☐ Check whether a citizen suit notice under 33 U.S.C. § 1365 has been served; standing is broad — Laidlaw, 529 U.S. 765. ☐ Note that a compliance order is reviewable — Sackett, 566 U.S. 120 — and that certain EPA actions go directly to the courts of appeals under 33 U.S.C. § 1369.
HOLDING LETTER
[Date] — [Agency, addressee]
Re: [Notice of Violation / Compliance Order] dated [ ], [property]
We represent [owner] in this matter. Work at the site was suspended on [date] and will remain suspended pending resolution.
[Owner] is retaining a qualified consultant to prepare an independent delineation and jurisdictional analysis and requests [30] days to submit that analysis. We ask that no further action be taken during that period and that any deadline be extended accordingly.
Please direct all further communication to the undersigned. [Owner] intends to resolve this cooperatively and is prepared to discuss after-the-fact authorization or a consent order once the technical facts are established.
[Counsel, contact]
☐ ⚠ Do not perform "voluntary restoration" without counsel. It can be an admission and can itself require a permit. ☐ ⚠ Do not speak to investigators about knowing conduct without counsel. Criminal exposure is real.
Tool 10 — Drainage complaint letter
[Date] — [Neighbor name and address], sent by certified mail
Re: Altered surface water drainage — [your address]
On [date] you [regraded the rear yard / installed a drain outlet / paved the driveway / removed the swale] on your property. Since that work, water has [flooded my crawlspace / eroded the side yard / stood against my foundation] on [list dates], which had not occurred in [ ] years of ownership.
The work appears to have concentrated water that previously flowed as diffuse sheet flow and to have increased both the volume and the rate reaching my property. I have enclosed dated photographs and video, an elevation survey dated [ ], and rainfall records for the relevant dates.
I would like to resolve this without litigation. I propose that we jointly retain a civil engineer to recommend a correction, with cost shared [ ]. Please respond by [date, 21 days out].
If we cannot resolve it, I reserve all claims, including nuisance, trespass, and negligence, and will seek injunctive relief and damages.
[Name, contact]
☐ ⚠ Photograph and video the water while it is running. These cases are decided on flow evidence. ☐ Obtain an elevation survey before and, if possible, from before the work. ☐ Preserve rainfall records for each event. ☐ Doctrinal background: neighbor law, good fences, resolving a boundary or encroachment dispute, the neighbor and boundary dispute toolkit.
Tool 11 — Conservation easement term sheet
| Term | Entry |
|---|---|
| Grantor / Holder | |
| Property (acres, legal description) | |
| Conservation purposes claimed under 26 U.S.C. § 170 | ☐ Recreation/education ☐ Habitat ☐ Open space ☐ Historic |
| Public access granted? | ☐ Yes ☐ No — ⚠ required for the recreation purpose |
| Reserved residential structures — number, size, mapped envelopes | |
| Reserved agricultural / forestry rights; management plan required? | |
| Prohibited: subdivision ☐ mining ☐ dumping ☐ filling ☐ signage ☐ commercial use ☐ | |
| Amendment standard and procedure | |
| ⚠ Extinguishment and proportionate proceeds clause | ☐ Included |
| Assignment limited to qualified holders | ☐ |
| Monitoring frequency and access | |
| Stewardship endowment contribution | |
| Remedies: injunction ☐ restoration ☐ damages ☐ fees ☐ | |
| ⚠ Mortgage subordination obtained | ☐ |
| Severed mineral interests addressed | ☐ |
| Existing leases addressed | ☐ |
| Appraiser and appraisal date | |
| Before value / after value / deduction | |
| Enhancement to contiguous land considered | ☐ |
| Baseline documentation signed by both parties | ☐ |
| Recording date and instrument number |
⚠ Walk away from any transaction marketed as an investment return. Syndicated conservation easements are a listed abusive transaction.
Program alternatives worth pricing first: 16 U.S.C. § 3839 easement programs; wetland conservation compliance at 16 U.S.C. § 3821 and 16 U.S.C. § 3822; rail-banked corridors at 16 U.S.C. § 1246; coastal programs at 16 U.S.C. § 1451, 16 U.S.C. § 1452, and 16 U.S.C. § 1455.
Tool 12 — Baseline documentation index
☐ Cover page with property description, date, and signatures of grantor and holder ☐ Statement of conservation values, tied to the purposes recited in the easement ☐ Location and boundary maps ☐ Topographic map ☐ Soils map with hydric ratings ☐ Hydrology map: streams, wetlands, ponds, ditches, springs, wells ☐ Vegetation cover map ☐ Aerial photograph, current, with parcel overlay ☐ Historic aerial series ☐ Inventory of existing structures, roads, trails, fences, and utilities ☐ Inventory of existing uses and leases ☐ ⭐ Photographs from numbered, mapped, permanent photo points, dated ☐ Species observations and any protected species records ☐ Cultural or historic features ☐ Known contamination or dumping ☐ Signed acknowledgment of accuracy by both parties
⭐ This document is read decades later by people who never met anyone involved. Build it so a stranger can stand at photo point 7 and see exactly what changed.
Tool 13 — Lender subordination request
[Date] — [Lender], Attn: [officer]
Re: Request for subordination — conservation easement, [property], Loan No. [ ]
[Borrower] intends to convey a perpetual conservation easement over the property to [holder], a qualified organization. Federal tax law requires that the conservation purpose be protected in perpetuity, which requires that any existing mortgage be subordinated to the easement.
Subordination does not release the debt, does not alter payment terms, and does not impair your right to foreclose. It provides that a foreclosure purchaser takes title subject to the easement.
Enclosed are the draft easement, the baseline documentation report, the appraisal, and a proposed subordination agreement.
Please advise whether the [committee] requires additional information. We ask for a response by [date].
[Borrower / counsel, contact]
☐ ⚠ No subordination, no deduction. Start this early; lender committees are slow. ☐ Record the subordination contemporaneously with the easement.
Tool 14 — Section 401 certification timing tracker
| Event | Date | Notes |
|---|---|---|
| Certification request submitted to the state | ⭐ The one-year clock generally starts on receipt of a complete request | |
| State acknowledgment of receipt | Get this in writing | |
| Request for additional information | Note whether the state claims a restart | |
| Public notice by the state | ||
| Public hearing | ||
| Draft conditions received | Review against the project's economics immediately | |
| Comments on draft conditions submitted | Preserve objections | |
| Certification issued / denied / waived | ||
| ⚠ One-year outside date | Calendar in two places | |
| Conditions incorporated into the federal permit | 33 U.S.C. § 1341 | |
| Appeal of conditions, if any | State administrative process |
⚠ A state that lets the year run waives certification and loses its conditions. Track the clock yourself; do not rely on the agency to track it.
Tool 15 — Routing table
Closing card
⭐ Three documents decide most water outcomes: the delineation, the approved jurisdictional determination, and the baseline documentation report. All three are cheap relative to what they control, and all three are routinely skipped or rushed.
⚠ Three deadlines end cases quietly. The section 401 one-year waiver. The Corps appeal window. The statutory non-use period for an appropriative right.
⭐ One habit prevents most disputes: confirm every agency conversation in a short email the same day. Regulatory staff turn over, files get thin, and in three years your contemporaneous note will be the only record of what was agreed.