If you’re preparing to buy, develop or alter
property, take heed. It may not appear that
wetlands exist on the land. But don’t be fooled; if wetlands are present it can take up
to one year or longer to obtain a permit to fill
them in and/or build upon them.
The first step is to engage a wetland delineation specialist who will determine if you do
indeed have a wetland on your property. If so,
the specialist will assess to what degree it will
impact your project.
“Too often, owners and developers presume that permitting will take a few months,
only to run into scheduling problems when
all other phases are ready to go but the wet-land permit has yet to be issued,” says Ted
Esborn, member of the business department
and chair of the Environmental Law Section
at McDonald Hopkins LLC. “Giving in to the
temptation to proceed without the wetland
permit (or in violation of its terms) can have
dire consequences in terms of penalties, legal
costs and extended project delays.”
Smart Business spoke with Esborn, who
deals with numerous complex wetland compliance matters and other environmental law
issues, about wetland development.
How did water become such a hot topic?
Until the Clean Water Act was passed in
1972, the Rivers and Harbors Act of 1899 was
the primary federal legislation for the protection of our natural waters. Its aim was to protect waters for navigation and commerce.
The Rivers and Harbors Act actually authorized the discharge of sewage into waters.
Water quality was an afterthought because
we assumed our freshwater resources were
replenishable and sustainable.
What changed our thinking?
The realization that our freshwater
resources did not have the capacity to accept
unlimited wastes and remain sustainable.
Commercial fishing declined. Industrial
rivers caught fire. Lakes and streams were
turning into open sewers.
How did wetlands become controversial?
Wetlands were once viewed as unproductive lands that served as habitats for disease-carrying mosquitoes and detriments to surrounding property values. However, in the
1970s, scientists began to realize that flooding increased and surface water quality
declined in areas where wetlands had been.
Why are wetlands regulated?
The U.S. Army Corps of Engineers
(USACE) and EPA share jurisdiction over the
waters of the U.S. The USACE maintains
‘navigation’ jurisdiction, issuing permits for
any proposed structures or filling affecting
jurisdictional waters. The EPA maintains jurisdiction over water quality impacts caused
by structures installed or filling activities.
Given the impacts that wetlands have on
surface waters, the USACE and EPA consider wetlands to be part of the jurisdictional
waters of the U.S. under the federal Clean
Water Act and require a federal permit for
any filling or building activities.
What constitutes a wetland?
Wetlands are determined by three factors:
they must have hydric soils, wetland vegetation and soil saturation for at least five percent of the region’s growing period.
How does one determine whether the three
factors for a wetland are met?
Owners should engage a wetland delineation specialist with specialized training in
botany and geology to assess the three factors. Botany is critical because plant species
typically determine the boundaries of a wet-land. Choosing an experienced specialist is
important because he or she can resolve disputes quickly and save time.
Do all wetlands that meet the criteria require
a federal permit from the USACE to either fill
them in or place a structure in their confines?
Not necessarily. A wetland meeting the
three criteria falls under federal jurisdiction if
it has a hydrological connection to a surface
water. But even if a wetland doesn’t have a
hydrological connection to a surface water it
may still fall under state jurisdiction as an
‘isolated’ wetland. Ohio and many other
states require their own authorizing permits
for impacts on isolated wetlands.
Why does it take so long to get a permit?
First, there is a dual-review process by both
the USACE and the federal or state EPA.
Second, if a wetland under federal jurisdiction is not eligible for a USACE standard
nationwide permit, then an individual permit
will be required. Individual permits take
longer to prepare.
Third, the USACE and EPA district offices
have limited field personnel available to
conduct ground-truthing site investigations
of submitted permit applications and
delineations.
Fourth, if the area might contain endangered species, a special survey may have to
be conducted.
Fifth, mitigation arrangements must be
established. If you eliminate a wetland, you
have to replace it by creating a new one or by
contributing to the enhancement of an existing one elsewhere.
The process can be very complicated, and
even contested, so it’s best to start about a
year in advance.
TED ESBORN is a member of the business department and chair of the Environmental Law Section at McDonald Hopkins LLC. Reach
him at (216) 348-5735 or [email protected].
