August 14, 2022

Volume XII, Number 226

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August 12, 2022

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August 11, 2022

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Once a wetland may always be a wetland when it comes to application of federal and state wetland protection laws!

Ducks Unlimited estimates that the United States has lost approximately 16.8 million acres of wetlands since the mid-1950s.  Although the rate of wetland filling has slowed since the passage of the Federal Clean Water Act, any purchaser of "land" should determine whether it has been filled and, if so, whether the requisite federal and state permits were in hand prior to any filling.

Why?  Federal District Court Judge Lisa Godbey Wood answers that question in an order issued last week concluding that the owner of a Georgia residential subdivision must defend itself against allegations that it is violating the Clean Water Act "even though [it] undisputedly did not commit the initial violations" of the Act because the continued presence of unpermitted fill may be a continuing violation.

Such "continuing violations" may also be asserted under many state wetland protection laws, including those of the Commonwealth of Massachusetts.

That's why you should make sure your Phase I Environmental Site Assessment tells you whether or not that property you're purchasing might be a former wetland so that you can make sure you don't unwittingly find yourself in the same position as this Georgia defendant.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 187
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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