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.
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