Wetlands

Permitting for the dredging or filling of waters or wetlands is a complex, sophisticated, and ever-changing area of environmental law. At the federal level, the U.S. Army Corps of Engineers ("Corps") administers the Clean Water Act Section 404 program, which provides the primary federal authority to regulate the dredging and filling of waters and wetlands. The Corps permitting program includes both individual and nationwide permits, as well as state-specific general permits, the latter two being a somewhat simplified permitting program that provides Section 404 authorization for more routine types of dredging or filling activities. Other federal agencies, including the U.S. Fish and Wildlife Service and the U. S. Environmental Protection Agency ("EPA"), as well as the State Historic Preservation Office,  also play roles in the issuance of permits by the Corps.

Legal challenges to the scope of the Corps' jurisdiction over waters and wetlands, and the U.S. Supreme Court decisions that resulted from these challenges, have increasingly rendered the scope of federal wetlands jurisdiction a question of both science and law. At the state level, there are similar, but not identical, state permitting programs (including both individual and general permits) that place requirements on those intending to dredge or fill waters or wetlands and, corresponding to what occurs at the federal level, state wildlife and fisheries agencies also participate in state environmental agency permitting decisions. Often viewed as subjective, permit application reviews by federal and state resource agencies may take months or years prior to a permit decision, particularly when it comes to large projects with substantial impacts requiring individual permits.

The firm has extensive experience in wetlands permitting, counting among the firm's lawyers practicing in this area a former environmental consultant and a former professional engineer. On behalf of clients the firm has obtained general and nationwide permits, as well as individual permits issued by states and the Corps, and has addressed issues concerning both freshwater and tidally influenced wetlands and river dredging.

In addition, we have resolved enforcement matters brought by the Corps, EPA, and state agencies regarding allegations of illegal filling of wetlands or permit violations. Our objective is to resolve these matters to our client's satisfaction as timely and efficiently as possible. We have also taken appeals of permit denials and jurisdictional determinations when decisions by the agencies were improper.

_{©2006 Photo by Cie Stroud}

Representative wetlands matters in which the firm has been involved include the following:

• MGKF obtained a federal Section 404 individual permit from the Corps for the developer of a large resort community including over 1800 residential units and a championship 18-hole golf course.
• The firm assisted a national homebuilder in obtaining both a Pennsylvania Chapter 105 state wetlands permit and a federal Section 404 permit (through the Corps' Pennsylvania State Programmatic General Permit) for a residential development on over 100 acres.
• We represented a marina developer in obtaining a coastal wetlands permit in New Jersey and in doing so settled an enforcement order and penalty assessment brought against the developer for alleged unlawful filling of the wetlands prior to applying for the permit.
• The firm settled a contentious enforcement matter brought by the U.S. Attorney's Office on behalf of the Corps against a major entertainment facility located along the Delaware River.
• The firm successfully challenged a wetlands delineation made by the Corps for a wetland located on our client's property in Pennsylvania. The challenge resulted in a reduction in the area regulated as wetlands on the property by the Corps.
• On behalf of a "big box" retailer, we resolved a permit violation issued by the Corps alleging that the retailer did not observe certain permit conditions during the construction of its facility. Using a voluntary settlement agreement that did not admit liability, the firm resolved the matter by negotiating a donation to a qualifying non-profit natural resource organization.
• MGKF resolved a wetlands violation alleged by EPA against a farmer who was clearing a field of trees, stumps, and trash, and which EPA contended were located in wetlands. The resolution of the matter included the implementation of a Supplemental Environmental Project.