The U.S. Army Corps of Engineers and the Ohio Environmental Protection Agency used to play good cop, bad cop when it came to wetlands regulations.
The Corps previously required that real estate developers replace an equal number of wetlands acres for every one disturbed by a building project. The Ohio EPA, on the other hand, categorized each type of wetlands destroyed, and at times, required developers to replace more acreage than was lost.
But on Christmas Eve, the Corps of Engineers and the U.S. EPA issued a joint memo which appears to say that the Corps will follow the EPA’s lead and start to crack down on developers when it comes to protected lands.
The memo, called a Regulatory Guidance Letter, said the Corps will start to analyze the function of the wetlands — what the wetlands do on the site, how they perform and what function they perform in the ecosystem or the watershed.
“This is a big shift in policy,” says Robert Karl, a senior attorney and member of the environmental group at law firm Ulmer & Berne LLP. “The Corps is looking not simply at doing a mathematical calculation as much as a scientific analysis. They’re no longer looking at ‘one-for-one’ anymore.”
The recent guidance letter is not officially law, but it’s a good indication of what the law will say in the coming years, Karl says.
“It’s like an evolving policy,” says Karl, formerly an environmental enforcer in the Ohio Attorney General’s office. “It looks at the court cases that have come down, it looks at the policies. It guides its regional officers how to interpret the law.”
Previously, when a building project disturbed wetlands, regulators said the developer could preserve other wetlands to make up for the loss. However, regulators are now dismissing preservation, which is usually less costly for the developer, and focusing instead on creation of new wetlands in exchange for those destroyed.
Preservation is now reserved for only “exceptional circumstances,” according to the guidance letter.
“This is much more strict,” Karl says. “You’re starting to see the federal government moving away from things that a couple years ago they said were OK.”
What this means for business owners is most likely a more costly and longer building project, if the development is located on wetlands, due to the closer scientific analysis.
“For now, I would tell my clients to proceed as they have before,” Karl says. “Submit your application, but call (U.S. Army Corps of Engineers) Buffalo District, which controls Northeast Ohio, and see what they’re thinking.” How to reach: Ulmer & Berne LLP, (216) 621-8400
