Monday, September 8, 2014

Wetlands Permits: What Homeowners Should Know

Q:       I want to build a house near a small lake, but a friend said the property might be a wetland. What is that, exactly?
A:        Wetlands are areas “inundated or saturated” enough by surface or groundwater that they can and generally do support vegetation adapted for living in saturated soil conditions. As such, wetlands are valuable because they improve water quality, help control flood waters, provide a habitat for fish and wildlife, and are aesthetically beautiful. For these reasons, state and federal agencies like the U.S. Environmental Protection Agency (U.S. EPA), the U.S. Army Corps of Engineers (Army Corps), and the Ohio Environmental Protection Agency (Ohio EPA) impose and enforce regulations meant to preserve and protect wetlands. If you are planning to build a home or start any project that could impact wetlands, you should be aware of these regulations. 
            U.S. EPA and a few state agencies have enforced wetlands regulations against individual homeowners for failing to obtain proper permits before undertaking activities that impact wetlands. For example, in 2012, the U.S. Supreme Court decided the case of Sackett v. U.S. EPA., which involved a 2/3-acre residential lot near Priest Lake in Idaho. The couple purchasing the lot filled part of it with dirt and rock in preparation for constructing their dream home. Shortly thereafter, U.S. EPA issued a compliance order informing them that the lot contained jurisdictional wetlands, and that filling the lot with dirt and rock without a permit violated the Clean Water Act. The order directed the couple to restore the property to its original condition or risk being fined up to $75,000 per day in penalties. The couple prevailed in the issue before the Supreme Court, which involved their right to appeal the order in an administrative proceeding, but they have yet to reach resolution with U.S. EPA or to resume construction of their home. 

Q:       What should I know about wetlands regulations before building or adding on to a home?
A:        Whether you are building your dream home, or merely adding a room, swimming pool, patio, or deck to your home, you should determine if there is a wetland on or near your property that your project might impact. It is not always easy to tell if an area is a wetland, especially if it is only “wet” for part of the year. You may need to consult with a wetlands delineation expert who will examine the vegetation, soils, and hydrology to determine if your property contains a wetland, and if so, its location, size and quality. 

Q:       What must I do if I want to build in a wetland? 
A:        If your project will impact a wetland that adjoins or is close to a navigable waterbody, you must get a Clean Water Act Section 404 (individual or nationwide) jurisdictional permit from the Army Corps. If the wetland is isolated from navigable waters, you must get an Isolated Wetlands permit from the Ohio EPA. Most single-family residential construction projects are eligible for a streamlined Nationwide Permit 29 (as long as less than half an acre of wetlands will be disturbed). If you are eligible, you will be able to avoid the more burdensome process of getting an individual permit. Overall, the location, size, and quality of the wetlands to be impacted will determine the type of permit required, and where to obtain it. Individual permits from the Army Corps require a separate state Section 401 water quality certification from Ohio EPA. You must comply with the requirements of your permit. 
            In addition to the cost and time associated with preparing and filing these applications, you can expect to wait at least 30 days for a nationwide permit and as many as 60 days for an isolated permit before the Ohio EPA or the Army Corp approves your permit, and you may wait up to 180 days or longer for an individual permit.

Q:       Can I avoid getting a permit? 
A:        If only part of your property is a wetland, you may be able to plan the construction and design of your project in a way that avoids impacting the wetland.

Q:       What if I receive a notice from the government that I have violated a wetlands requirement? 
A:        If you get a notice of violation, you may have to pay a fine, and you will probably have to eliminate the violation by restoring the property to its original state or obtain an after-the-fact permit to make it legal. Depending on the circumstances, you may need to consult with an environmental attorney and possibly a wetland delineation expert. 

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by Chris Kim Kahn, an attorney with Frost Brown Todd LLC.
Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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