­

Homeowners do receive wetlands penalty citations from either the state or the federal government. In this article, I will explain why these violation notices are sent to homeowners, what a homeowner should do if he or she receives such a penalty citation, and tips for avoiding these problems in the first place.

Why Wetlands Penalty Notices are Sent To Homeowners

Wetlands are regulated properties characterized by specific soil conditions and vegetation. Not all wetlands are in swampy areas. And all wetlands don't look the same.

Wetlands are protected under federal law, and often by state and local law as well. The reason for this protection is that wetlands have a substantial environmental benefit. While they do many good things, I think the most important things that wetlands do are (1) provide a means for groundwater recharge, (2) prevent erosion, and (3) provide habitat to many kinds of species, including threatened and endangered species.

Because wetlands are important, under most laws you either cannot build on them all together, or you can build, but only in a limited way.

Usually, people who disturb wetlands by either building over them or otherwise impacting them need permits. For some kinds of frequent activities, the permits may be simple to obtain. But in many cases, these permits are costly and more difficult to obtain.

Homeowners accidentally and sometimes not so accidentally fill wetlands all of the time. They do so when they build swimming pools, patios, decks, and additions (to name a few frequent violations) over protected wetlands.

People get caught in two frequent ways: they need a local permit and the local inspector notes a violation. Or, a neighbor "rats" out the offender.

Neighbors seem to rat out offenders in more than half of the cases that I see in my office. I believe that often they do it because they care about the environment. And sometimes they do it to even a score.

What Should A Homeowner Do If He or She Receives a Violation Notice

If the government issues a violation or fines you, it usually wants two things. First, it either wants you to eliminate the violation or obtain a permit to make it legal; and second, it wants you to pay a fine.

Often it pays to hire an environmental lawyer because the exposure can be large. Also, this kind of lawyer understands the system and can provide you with quality guidance.

Of course, if the penalty is small and the overall legal exposure is small, you may feel you do not need a lawyer. This depends on the extent of risk you are personally willing to take. Each of us has a different risk threshold.

Don't, in any case, admit to anything without obtaining counsel. While usually these are not criminal cases (sometimes they are criminal cases), it is still generally true that whatever you say can be used against you.

So speak wisely, and generally speak after obtaining legal counsel. Often its that innocent small talk that will come back later to haunt you.

You will likely also need a wetlands specialist, either to help defend you, and/ or to help you prepare a mitigation plan acceptable to the government in the event you are seeking to keep the filled wetlands in place.

Be sure to obtain the services of an experienced consultant -- one who understands the laws of your state, and how your local regulatory agency operates. You do not want to provide your consultant with on the job training, at your expense.

And finally, be reasonable. If you did nothing wrong and this is all a mistake -- then that's one thing. And that certainly does happen.

But if you have violated the law (either intentionally or innocently) and you know that's the case -- it may very well be that the smartest and most cost effective thing for you to do is to work with your professional team to identify any compromises with the government that might be mutually acceptable.

How to Avoid These Problems

Its simple. Determine whether you are disturbing regulated property before you undertake any project. Sometimes the answer to this question is obvious. But often it is not obvious.

A professional wetlands delineator will help you answer this question. In most cases, you cannot answer the question by simply looking at an official wetlands maps. While those maps may provide general guidance, most of the time only a field investigation by a qualified consultant can provide you with the comfort that you require.

And if you need absolute certainly, often you may request that you wetlands regulatory agency confirm the presence or absence of wetlands. This may be through a formal application process.

Procedures vary nationwide, which is why you require a knowledgeable local environmental professional team.

Log in to comment
­