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Bringing Existing Projects into Compliance With Wetland Requirements: Getting out of the Bog

Zach C. Miller, Steven Dougherty, John H. Morton, Wetland Issues in Resources Development (1993)

Evaluating whether a proposed future project will trigger wetlands restrictions or requirements and determining how to avoid or comply with those requirements can be an extremely difficult task. Unfortunately, for past and ongoing projects, these difficulties are even greater. When addressing past activities, an investigator must ask and answer the same difficult questions facing the proponent of a new project, but those questions must be answered in the context of the status of the law and the facts at the time the past activity occurred. Because the law governing wetlands has evolved considerably over the last 20 years (as described in the preceding papers), this analysis can be quite complex. In addition, an investigator must often evaluate whether a site now wholly filled or transformed was technically a wetland under both the law and conditions in existence at the time of the past activity. Finally, if the investigator is legally responsible for the past activities, it is faced with potentially major civil and criminal liabilities and substantial restoration or replacement costs.

This paper outlines the major questions and considerations facing owners of past or ongoing projects who may be in violation of § 404 of the Clean Water Act (33 U.S.C. § 1344) or other wetlands requirements and suggests some steps to get an out-of-compliance project back into compliance.