WETLANDS

Philadelphia Wetlands Lawyers

Development and construction activities in wetlands areas are heavily regulated under federal law by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers under Section 404 of the Clean Water Act (CWA), and by state environmental departments of environmental protection under state laws. Most developers and builders are aware of the environmental value of wetlands for filtering and storing water, reducing flooding, and serving as habitat to countless fish, animals and plants.  However, they often encounter difficulties in planning and building construction projects because of the broad way in which administrative agencies and courts have interpreted and applied the term “wetlands” and “navigable waters” which are regulated.

Expanded Definitions Encompass Many Activities, Places

Wetlands are not limited to just rivers and streams, and lakes and ponds. So at the time that many clients begin planning a development or construction project, they are unaware that any wetlands are present on the property they plan to fill or build on. Wetlands may include a roadside drainage ditch that carries off storm water when it rains, or a channel through a meadow or forest which appears dry most of the year, or what appears to be an isolated swamp, marsh, or bog. Section 404 of the CWA, or similar state law will require obtaining a wetlands permit before that wetland can be filled, altered, or disrupted, before trees can be cut down or land is cleared, or before excavation and construction start. These restrictions may apply not only to the wetland areas themselves, but to “buffer areas” around them. According to Philadelphia wetlands lawyers, the revisions to Section 404 mean permitting is now required for numerous activities, many of which are seemingly innocuous. Electric utility companies may need a Section 404 permit to perform utility line excavation and backfill, while individual property owners may need a Section 404 permit to build or expand a residential home.

Before planning any construction or development in close proximity to a river, stream, lake, or any area which may be “hydraulically connected” to any body of water, consult Philadelphia wetlands lawyers at Michelman & Bricker, P.C. Our experienced, capable team can help you navigate the pitfalls of Section 404’s permit requirements, and emerge with a timely, completed project.

Permitting under Section 404 of the CWA is administered and enforced by EPA and the Army Corps of Engineers, who define wetlands as any area inundated or saturated by surface or ground water frequently enough to support vegetation, which is adapted for life in saturated soil conditions. Although Section 404 initially was designed to regulate activities involving dredging and the discharge of dredged materials into water, its scope has been dramatically expanded since its enactment in 1972.

There are a variety of permits offered under Section 404 and state law, Nationwide and regional general permits cover activities with minimal adverse effects, while individual permits are required when activities could do more potential harm to wetlands areas. Depending upon the size of the area of wetlands affected, the type of wetlands impacted, and the nature and scope of the planned activities, a development or construction project may be small and limited enough to fall within the simplified permit requirements for a wetlands “general” permit, rather than under the more stringent regulatory requirements which must be met for an “individual” wetlands permit. .

Absent an exception – reserved primarily for the farming and forestry industries – a Section 404 individual permit will not be issued when a practicable alternative exists for the discharge of the dredged material or when water will be significantly degraded. Individual permits may also require a public notice and comment period.

Philadelphia Wetlands Lawyers at Michelman & Bricker, P.C.: A Proven Record of Success

Our Philadelphia wetlands lawyers get results. At Michelman & Bricker, P.C., we have successfully defended the owner of a commercial property who was issued violation notices by the New Jersey Department of Environmental Protection, and faced federal and state lawsuits under New Jersey’s Environmental Rights Act for disturbing wetlands by dredging and expanding a roadside drainage ditch. We obtained a state wetlands permit, retroactively legalizing the work performed within the wetlands without the imposition of any fines and penalties, and obtained dismissal of the neighbor’s federal and state court litigation.   In another case, we challenged EPA’s determination that a landowner had disrupted a “wetlands” when be excavated and built a pond in a meadow, that was allegedly fed by a ditch (or “channel of conveyance”) that was dry for the majority of the year but occasionally contained runoff from melting snow. We settled EPA’s civil penalties action through payment of a $100 penalty

As the Army Corps of Engineers has made clear, wetlands are to be protected, but the existence of wetlands does not need to completely stop your project. Our Philadelphia wetlands lawyers at Michelman & Bricker, P.C. understand the complicated process of obtaining Section 404 permits and state wetlands permits for building on or near these protected areas.

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