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.

State Law Matters: Ohio's Lake Erie Dredged Material Program

All of the information below was taken from the Ohio Environmental Protection Agency web page for its Dredged Material Program —

If you live or work along Ohio’s northern border, aka Lake Erie, particularly near one of Ohio’s 8 ports, then you may be aware of the need to regularly dredge our shipping channels and the controversy that has been brewing with regard to what is done with the dredged material.  Currently, some or all of the dredged material, depending on where along the lakeshore the dredging occurs, is dumped in the open lake. By July 2020, the State of Ohio will no longer permit disposal of dredged material in the open waters of Lake Erie.

The Ohio EPA and others are scrambling to look for cost effective solutions for the material that is dredged, much, if not most, of which is suitable for reuse.  Here are a few FAQs that are published on the Ohio EPA’s web site:

What is dredged material?

Dredged material includes material excavated or dredged from a lake or stream. The Ohio EPA beneficial use program focuses only on material dredged from federal navigation channels on Lake Erie during harbor or navigation maintenance activities. Dredged material can consist of soil, sand, silt, clay and organic matter that have settled out onto the bottom of the channel. 

What if I want to beneficially us dredged material from a federal navigation channel in an upland setting, do I need Ohio EPA approval?

Yes. If you wish to beneficially use dredged material in an upland setting, you will need to first submit a Land Application Management Plan (LAMP) permit application by completing LAMP Form A and LAMP Form C1 which can be found here (click on the “I-N” Tab and then click on the “LAMP Form” bar to access the forms). In addition, you will need to submit a description of how you will manage, store and/or treat the dredge prior to beneficially using the dredged material. You must also submit all sampling and analysis data of the dredged material along with all proposed beneficial uses. If you are interested in beneficially using dredged material in an upland setting, please contact Ohio EPA’s Division of Materials and Waste Management at 614-644-2621 and they will answer any questions you may have, help you complete the LAMP permit application and assist with the authorization process. 

Is Ohio EPA developing beneficial use rules for dredged materials?

Yes. Ohio EPA is in the process of developing beneficial use rules which will include the use of dredged material from federal navigation channels. In May, 2015, draft beneficial rules were released for interested party comment. Ohio EPA is reviewing the comments received and anticipates taking the first step in the formal part of the Ohio rule-making process by filing proposed rules and providing an Ohio EPA public hearing and comment period early in 2016. Following consideration of formal public comments and testimony, the proposed rules will have a separate hearing before the Ohio Legislative Joint Committee on Agency Rule Review. Once these have been completed, we will file final rules and set an effective date. Until the rules are finalized, the LAMP process described above should be followed. 

Has the Ohio EPA approved the beneficial use of dredged material?

Yes. To date, Ohio EPA has issued two Land Application Management Plan permit authorizations for the beneficial use of dredged material. They are both associated with the beneficial use of dredged material from a Confined Disposal Facility located in Cleveland, Ohio. The first authorization was issued on June 29, 2015; the second authorization was issued on Nov. 5, 2015.

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The Army Corp of Engineers oversees the dredging. It typically covers the cost of dredging and disposal of the dredged material, but only at the level of the most affordable option. Open lake dumping of the dredged material is the lowest cost option available today. If another method of disposal is required, as it will be after July 2020 in Ohio, we will have to come up with the money to pay the cost differential.  We have 4 years to figure that out and implement the solution.

Stay tuned for future updates.

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Final Rule Issued Redefining "Waters of the United States"

The final Clean Water Rule regarding the new definition of “Waters of the U.S.” (WOTUS) was published in the Federal Register on Monday, June 29, 2015. The effective date for the rule is August 28, 2015. The rule redefines what water features will fall under the joint jurisdiction of the U.S. EPA and the U.S. Army Corps of Engineers.

The EPA received more than 1 million public comments regarding this rule and has issues a response to the comments that totals more than 8,000 pages. (Your tax dollars at work people. Has anyone managed to read this response? Lunch is on me if you can prove to my satisfaction that you managed to wade through it all.)

Several legal challenges have already been filed against the new rule by approximately 27 state attorney generals. The reason this rule is such a hot button issue for state and local governments is jurisdictional. If a water features is held to fall under the definition of WOTUS, then it usurps the jurisdiction of state and local governments.

While the federal regulators claim this new definition provides for greater clarity, many others disagree. Links to analyses of the new rule are below.

Understandably, the states and counties are upset that they may be losing control to the federal government.  As a citizen, I’m concerned as well. While state and local governments can trample on our rights as easily as the federal government, they still tend overall to be more responsive to the views and concerns of their constituents than someone sitting in an office in Washington, DC would be. Also, what may work in one state, may not be the best solution in another state. Keeping control more devolved allows for rules to be developed that are more responsive to the needs and issues of that state, as opposed to the one size fits all approach of most federal regulations.

EPA final WOTUS rule

Analysis by The Associated General Contractors of America

Fact Sheet by the National Association of Counties

Article published by the National Association of Realtors

While both the U.S. House of Representatives and the U.S. Senate has either passed or is considering legislation to address the rule and potentially restart the rulemaking process, President Obama has indicated he would veto any such bill.

The end result of this new rule will be increased federal involvement in the regulation of land use.

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