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.
