Don’t Let the Mud Hit the Fan – Wetlands Legislation is Often Overlooked by Business Owners.

By Andrew H. Ernst, published on September 10, 2000, in Savannah Morning News.

We are all aware of the environmental problems associated with the purchase of property that may be contaminated with hazardous substances. However, Savannah business owners often overlook another important environmental issue: wetlands legislation.

Overlooking the Clean Water Act, which regulates the filling of wetlands, among other things, can be a costly mistake. You may acquire property only to discover your plans thwarted or complicated by the Army Corps of Engineers or the Environmental Protection Agency which have recently stepped up enforcement actions with respect to wetlands development.

Before buying property you should ascertain if it contains regulated wetlands. If so, it must be determined whether the proposed activity on the property falls within the scope of one of the “nationwide permits” provided by the CWA or whether you must complete a more detailed individual permit review process. An individual review may include public hearings and scrutiny by such government agencies as EPA, U.S. Fish and Wildlife Service, National Marine Fisheries Service and various state agencies.

The project will be reviewed according to EPA’S guidelines and may not be permitted if there is an alternative that would have a less adverse impact. Even if the Corps is willing to issue a permit to the developer, EPA can veto the Corps if it determines the proposed activity will have an unacceptable environmental impact.

Wetlands development is not simple. Failure to follow the proper process can result in fines, restoration of the property and even criminal penalties for certain violations of the CWA. While it is impossible to address all of the complexities here, a few observations may help explain the process.

First, it is important to understand that the government’s definition of wetlands goes far beyond swamps, marshes and bogs. In fact, regulated areas may not even appear wet.

The Corps generally defines wetlands by looking at three indicators: the presence of hydric soils, wetland hydrology and wetland vegetation. In coastal areas wetland vegetation is just about anything that grows. Many old timers feel if there is even a “privy” out back, you probably have a wetland. In all seriousness, most wetlands lack both standing water and waterlogged soils during at least part of the growing season. This makes a determination somewhat tricky, so when in doubt consult the Corps or a competent consultant.

Second, understand that the regulatory staff at the Corps is just like anyone else with a job to do. They are hassled, overworked and for the most part do a good job in a difficult setting. While they enforce the legislation strictly; if you can show them how a project can be accomplished in a creative manner without breaking or circumventing the regulations, they will usually support you and the project every step of the way.

This is exactly what happened when the Savannah Economic Development Authority came to the corps with its concept for Crossroads Business Center, located adjacent to Interstate 95.

Without knowing who the end users in the business park were going to be, the Corps could not address all of the secondary environmental impacts the park might generate. SEDA convinced the Corps and EPA that there were enough land-use and government controls in existence to regulate environmental impacts other than those associated with wetlands. In the end, a “first of its kind” permit was issued. Those businesses locating in Crossroads today have saved tens of thousands of dollars and much time by avoiding the permitting process SEDA has already completed.

Third, meet with regulatory agencies in advance and have a well-planned application, which outlines in detail how you plan to mitigate or compensate for necessary wetland impacts.

Do not be afraid to be creative in an effort to avoid wetlands impact. The Savannah Harbor Resort on Hutchinson Island is an outstanding example of this. Permit modifications and refined development plans have resulted in a more environmentally sensitive project, far superior to what was originally envisioned.

In short, know the area you plan to develop. Work with the agencies, and if possible, be willing to compromise. All this may help you avoid being splattered by the mud if it should hit the fan.

The views expressed in this article are solely those of the author This article is intended for general
informational purposes only. It is not to be regarded as legal advice. Persons with specific questions should seek advice of counsel.

(Drew Ernst practices land use and development law and environmental regulation at HunterMaclean. He can be reached at dernst@huntermaclean.com.)