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What to Do if You Have Been Charged with a Tidal Wetlands Violation

April 11, 2019

In Virginia, wetlands are protected by law.  The Virginia Marine Resources Commission (VMRC), working in in close coordination with the Department of Environmental Quality (DEQ) and local Wetlands Boards, have the responsibility to preserve and prevent the destruction of tidal wetlands while also accommodating necessary economic development in a manner consistent with wetlands preservation.  Va. Code §28.2-1301(B).

Construction activities in tidal wetlands areas are highly regulated.  You must obtain a permit for any activity that is not specifically authorized by law.   Certain categories of construction projects are explicitly authorized, but it is not always immediately clear whether a proposed project will fall into one of these narrow categories.  For example, you can build certain types of non-commercial piers and boathouses if the structure is constructed on pilings that permit the “reasonably unobstructed flow of the tide and preserve the natural contour of the wetlands.”  Va. Code §1302(3)(1). 

If the locality has created a Local Wetlands Board, then the Local Wetlands Board decides whether to grant or deny the permit.  As an applicant, you may appeal to the VMRC if you are unhappy with the decision of the Local Wetlands Board.  On the other hand, if the locality has opted not to create a Local Wetlands Board, the VMRC decides whether or not to grant the permit.  In that case, you may appeal the VMRC decision to the appropriate court.  In Hampton Roads, for example, Virginia Beach and Norfolk have each established their own Local Wetlands Board. Chesapeake, however, does not have a Local Wetlands Board.  This means that unlike the situation in Virginia Beach and Norfolk, the VMRC decides all tidal wetlands permitting issues in Chesapeake.

Penalties for conducting prohibited activities in a tidal wetland can be quite severe.  For example, under Virginia Code §28.2-1318, it is a Class 1 Misdemeanor to knowingly, intentionally, or negligently violate a wetlands law.  The word “negligently” is important.  This means that you can be charged with a crime even if you did not know that your activities would potentially harm tidal wetlands, as long as you reasonably could have known.   In addition to the criminal penalties, the VMRC has the authority to assess civil fines which can be quite severe. 

The good news for those wishing to build in a tidal wetland is that according to proprietary data gathered by Pender& Coward’s waterfront law team, the VMRC almost always approves construction permits when the applicant properly follows the application procedure.  In fact, our data shows that last year the VMRC approved 100% of such applications. 

Unfortunately, it can be extremely difficult to tell if a piece of property is subject to tidal wetlands regulations such that a permit is required.  Although some tidal wetlands can be obvious, others are nearly impossible to discern.  Nevertheless, the law applies to all types of tidal wetlands, and the consequences of making a mistake can be enormous.  This should be concerning to anyone who owns property in Tidewater or other tidal areas in Virginia, and to all businesses that conduct any type of construction in these areas.  For more information on permit applications in construction projects, see this article written by my colleague and waterfront law attorney Jim Lang.

In a recent VMRC hearing, a Chesapeake homeowner was required to pay nearly thirty thousand dollars in fines and penalties for hiring a contractor to add fill dirt to his own back yard!  The homeowner’s yard was situated at a lower elevation than yards of his neighbors, causing water to rise into the crawlspace under his home during heavy rains.  In order to prevent the flooding, the homeowner hired a company to add dirt to his yard to bring it up to the same elevation as his neighbors’ property.   Unfortunately for the homeowner part of his backyard contained a protected tidal wetland, which brought him to attention of the VMRC.

The homeowner chose to represent himself at his hearing rather than obtaining legal counsel.  At the hearing, he testified that he was not aware that his backyard included some areas of wetlands.  Interestingly the VMRC did not dispute this, and the members of the Commission even acknowledged that there was no way to visually tell that a wetland was present.  Nevertheless, the VMRC assessed a civil penalty of $6000 dollars against the homeowner.  Additionally, he was required to purchase 1250 square feet of “wetlands credits,” meaning that he had to pay for the construction of two square feet of new wetlands for every one square foot that he had filled in.  These credits cost the homeowner $21,500.  Thus, the total cost for filling in a portion of his backyard came to $27,500, in addition to the cost of the project itself!

After dealing with the homeowner, the VMRC turned its sights on the contracting company that had performed the work.  The VMRC sent the company a letter requiring the owner to explain what had occurred and why he should not be charged with a tidal wetlands violation for filling in the homeowner’s yard. Unlike the homeowner, the contractor decided not to represent himself but instead hired an attorney from our firm’s waterfront law team. .

 Our team’s first step in answering the inquiry was to determine what factors the VMRC uses to assess whether a civil penalty against a construction company is warranted.   Some of these factors include how often the contractor performs work in tidal wetlands areas; whether the violation was willful; the extent of the damage caused; and the company’s record of compliance with wetlands laws and other environmental regulations.

Utilizing our waterfront law team’s close working relationship with the VMRC Staff, we found many mitigating factors which favored our client.  Some of these included the company’s impeccable record of compliance with environmental laws, and the fact it rarely performs this type of construction project.  After several weeks of dialogue between our attorneys and the VMRC, the Commissioner agreed to drop the case against our client and not to pursue the issue any further.  Thus, the client avoided having to appear at a hearing and was saved from what could have been a very large fine.        

Regardless of whether you are a contractor or a homeowner, if you are considering conducting any type of construction activity in the Tidewater area or any tidal areas in Virginia, you would be well-advised to make sure that you are not building in a tidal wetland area without a permit.  Our team can assist with the permitting process for such projects.   If you have already been charged with a violation, we recommend seeking legal counsel from an experienced environmental /waterfront attorney.  Although no two cases are alike, as the foregoing story shows, an experienced attorney can mean the difference between a large fine and a dismissed case.

Bryan Peeples is a Pender & Coward attorney focusing his practice on waterfront law matters.

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