Avoiding Issues with Protected Wetlands (a case study)

By Leslie G. Wolfe and John A. Heer


Wetlands are a major issue for almost anyone who owns commercial or industrial property - now more than ever thanks to the EPA's new overly broad definition of what constitutes protected wetlands. A case in point involves a Walter | Haverfield client who owns a small piece of commercial property.

Several months before contacting us, the client had cleared and paved an area to provide more space for a tenant to park trucks on an adjacent parcel. At the time of the work, the client was unaware that there might be wetlands on the property.

Based on information supplied by an anonymous neighbor, the U.S. Army Corps of Engineers issued a violation notice to the client, alleging that material had been placed in the area illegally because it was on regulated wetlands without receiving prior authorization - a violation of federal law. The Corps' letter presented two options for the client to remedy the violation. Under the first option, the client could remove the fill material, restore the area to pre-disturbance elevations and grades, and re-seed and mulch the disturbed area with an approved wetland seed mix. Alternatively, the client could apply for after-the-fact authorization for the prior filling.

Because the Corps took the position that half of the filled area contained broken asphalt, if the client chose to apply for after-the-fact authorization, it would be required to remove the broken asphalt and submit additional information for the permit, including a wetland delineation, drawings of the proposed project showing the areas to be filled from a top and side view, and a proposal for mitigation to offset wetland impacts.

The client's objective was to take the path of least resistance and lowest cost to ensure the marketability of the property. Although the client originally sought to obtain a permit for the work that was already done, our environmental legal team advised that the more cost-effective and efficient response would be to remove the fill and restore the property.

Our attorneys worked with the client to reach an agreement with the Corps that the fill would be removed from the wetland areas. The Corps agreed to issue written approval for the proposed restoration plan. Under the plan, the client agreed to re-grade areas to their original depth; seed the area with an approved wetland seed mix; and dispose of the asphalt. About a week after the removal and restoration work was completed, the Corps issued its Acceptance of Restoration letter, confirming that the violation had been resolved.

Just a few of the lessons which can be learned from this case include:

  1. When performing any filling or earth moving, carefully consider the areas being filled or changed. The definitions of wetlands and other terms relevant for environmental regulation are very broad and might encompass areas which you might not think are regulated.
  2. If you are contacted by a regulating authority, especially based upon a citizen's complaint, consider engaging legal counsel as soon as possible.

To reach Attorney Wolfe, call 216-928-2927 or e-mail lwolfe@walterhav.com.