Agricultural Land May = Wetlands (aka Farmed Wetlands)

Reprinted with permission from Jason McKenney& Ben Latoche of HZW Environmental Consultants, LLC

Over the past three (3) years, acquisition of agriculture properties for commercial and residential development has been on the rise.  Most prospective buyers, as well as the property sellers, generally believe that active agricultural fields are clear of regulated surface water features (e.g. wetlands, streams, and/or regulated ponds), however, that is not necessarily the case.  The official position taken by the United States Army Corps of Engineers (USACE), the regulatory agency responsible for determining the presence or absence of such features, is that these resources may still be present on such sites despite on-going and successful agricultural activity.  These features, primarily known as farmed wetlands, jurisdictional ditches, or palustrine open water systems, are protected under both State and Federal law in Ohio and thus will place a regulatory burden on both the property owner and any potential buyer of the land.

 In order to determine whether or not farmed wetlands or any other regulated aquatic resources exist within agricultural land, USACE recommends performing a thorough examination of existing background data before finalizing any waters delineation reports.  This background data can be constituted of aerial images (current/historical), soil surveys, topographic maps, and/or photographs of the land to name a few items.  Firms like HZW Environmental Consultants, LLC, and their peers can then combine this data with information gathered during a field visit and compile a comprehensive report.  A document of this caliber will give both the property owner and any potential buyers some peace of mind about the value of the land they may be exchanging.  This type of detailed report will also greatly increase the chances that USACE will concur with the consultant’s work and minimize any regulatory surprises down the road.

It is also important to note that landowners do have the ability to maintain, and potentially increase, the value of their property.  Doing so entails decreasing their (or any future purchasers’) regulatory burden by performing simple maintenance.  Most agricultural fields in Northern Ohio have some type of sub-surface tile or surface drainage system to shed water away from arable land and into a designated location such as a pond, stream, or off-site outlet.  When these systems fall into disrepair (e.g., sediment clogging in tiles or vegetation choking ditches), there is a chance that the fields they serviced can begin to mimic the natural conditions of wetlands and/or streams.  Thus, property owners looking to avoid federal or state regulatory headaches should address these issues promptly to ensure the free movement of water through and off of the property.  Such actions can include, but are not limited to, clearing ditches of excess vegetation and/or sediment, appropriately sizing/places culverts within ditches, ensuring tile discharge locations are clear of debris, and replacing any collapsed or failing subsurface tiles in a timely manner.

A note of caution, a prospective buyer should be weary of depending on a consultant’s report alone.  As stated above, USACE is the regulatory agency that determines the presence or absence of regulated aquatic resources.  Even the best consultants cannot always predict how USACE will respond to any given property.  Changes in Federal policy on wetland delineation come often, and interpretation of these shifting standards can vary greatly between USACE representatives of the same office.  Thus, it is always recommended that a jurisdictional determination be obtained from the Corps before any property changes hands.  This document is essentially an ‘official delineation report’ that legally affirms the location, size, amount, and type of jurisdictional resources that exist within a property.

HZW is a women-owned business enterprise and full service environmental and safety consulting firm with offices in Mentor and Akron, Ohio and field offices in Euclid and Canton, Ohio. They are recognized as one of the leading providers of quality environmental and safety consulting services in the State of Ohio, nationwide, Canada and Mexico. Jason McKenney (JMcKenney@hzwenv.com) is Group Leader and Ben Latoche (Blatoche@hzwenv.com) is a Project Manager, in HZW’s Wetlands & Ecology division.