Don’t get ‘bogged’ down Featured

8:00pm EDT June 25, 2008

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 tesborn@mcdonaldhopkins.com.