Through its enforcement efforts over the past several years, the Florida Department of Environmental Protection (FDEP) has noticed a trend by contractors or their subcontractors of placing materials associated with road construction activities within wetlands without proper authorization. Such actions can subject the parties involved to substantial liability risks.
It is common practice for road builders to utilize private property for storage of materials and equipment –– and for the disposal of excess dirt during road construction. Most contractors obtain the property owner’s signature on an agreement that states what is allowed. This is done in an effort to prevent misunderstandings, liability or other legal issues. The problem is, placing fill material in wetlands on private property, even with a signed agreement, may violate state environmental regulations, county ordinances and Florida Department of Transportation (FDOT) contract requirements.
Although most people can identify wetlands and surface waters when they are present in marshes, swamps, creeks and canals, other habitat forms may not be so obvious. Features like seasonal ponds, wet prairies, drainage channels and ditches, or other similar areas, may not be recognized as wetlands and surrounding waters. Yet, they are the same according to the Florida unified wetland delineation methodology.
A little background may prove helpful in understanding the various issues:
The FDEP handles wetland, solid wastes and National Pollutant Discharge Elimination System (NPDES) issues on private, single-family properties. Serious violations –– where up to 100 truckloads of dirt, land-clearing debris and asphalt millings have been placed in wetlands –– seem to follow road jobs in Central Florida.
In many cases the property owner admitted to asking the road builder for excess fill material, or deals were made directly with truck drivers en route to a landfill or other proper disposal site. Word of the free or inexpensive fill then quickly spreads by word of mouth to adjacent landowners with “low lands” in need of fill. Hand-painted signs on plywood proclaiming “Fill Wanted!” are a common sight around larger road jobs.
These violations are often very expensive to correct when equipment rental and hauling the material to a landfill is considered. Most property owners who are willing to accept the type of fill material left over from a road job cannot afford to pay for appropriate fill to be delivered and spread. Likewise, they simply do not have the means to hire another contractor to remove the material and dispose of it properly.
Fill may include, but is not limited to:
• Concrete rubble;
• Clearing debris;
• Construction debris;
• Eroded materials;
• Fill roads;
• Material stockpiles;
• Excess materials.
Also, some of the materials associated with road construction projects are considered solid waste by Florida law and accordingly may not be placed within 200 feet of a natural or artificial water body, including wetlands.
Further, state and county permits may be required for placement of fill within areas that may affect stormwater conveyance or storage, as disruption of stormwater flows may cause off-site flooding and property damage.
When fill is located within wetlands or surface waters and also is considered solid waste, it would constitute two separate violations. Therefore, it does not matter that the property owner gave permission and probably asked that the fill material be placed where it was by the contractor.
Under the 2001 Environmental Litigation and Reform Act, 403.121, F.S., contractors may be assessed a per-site penalty of up to $5,000 for any unauthorized dredging or filling activity within a wetland or surface water, and $3,000 for solid-waste violations with the possible addition of multi-day penalties included.
In cases where the violations are egregious or are repetitive in nature, criminal investigations may ensue and could result in fines and possibly imprisonment.
Additional issues that may be pertinent to contractors include:
• Potential liability due to flood damage;
• Water-quality violations;
• Relocation costs;
• Restoration and monitoring requirements;
• Legal fees;
•Enforcement actions become public record.
Also, repeated or intentional non-compliance with applicable regulations may be a factor during bid reviews for contract awards.
When faced with a situation involving serious environmental violations, coupled with limited property owner resources to perform restoration, the DEP began searching for other ways to solve the problem.
The most effective solution has been to require the contractor who supplied, delivered and spread the material to restore the violation site with the property owner’s assistance. Both parties are responsible for the restoration, and both are subject to civil penalties. This works fairly well when the violation is caught while the contractor still has plenty of resources on the job site.
However, violations have sometimes been discovered years after the initial filling; these are more costly to restore because the equipment must be pulled from another job and allocated to the restoration site.
Examples of successes in utilizing this approach has yielded reforestation of wetlands that were previously impacted by disposal of land-clearing debris and restoration of a residential neighborhood, flood storage area, and herbaceous wetland habitat, which had been filled with materials that were considered solid wastes.
In the latter case, hardly any of the fill material observed in the wetland violations were considered clean. The material had land-clearing debris, asphalt and other debris such as broken barrel parts, telecommunications lines, and pieces of culvert. The only way uncontaminated dirt could remain on the site was if the unclean material was sifted from it. Dirt with a mixture of unclean items is not considered clean fill.
Staying Out of Trouble
• Dispose of fill and solid waste in accordance with regulations and permit conditions;
• Properly install and maintain erosion and sedimentation control measures until disturbed areas are stabilized;
• Ensure that erosion and sedimentation control measures are implemented at disposal sites, or materials are placed so as not to cause a violation;
• Prior to use, take measures to have disposal sites inspected by suitably qualified personnel;
• If applicable, follow NPDES permit requirements;
• Educate personnel on the protocols and handling of materials to be disposed.
At this point, it may seem as though delivering excess materials to the contracted location instead of private property would be the easy solution. This may be a viable option, but you would still need to ensure that the location is not a wetland and that the fill is not considered to be solid waste.
You may wish to require that the property owner give you a recent written document from the FDEP, or reputable environmental consultant, about the proposed fill site. Be aware most local governments have regulations about placing fill material in the 100-year floodplain, an area that may or may not meet the state’s wetland definition. Clean, uncontaminated fill material may be placed in uplands without a permit from the FDEP.
Does this mean the end to working cooperatively with property owners? Not at all. It just means taking a responsible approach through instructing personnel properly before releasing materials destined for disposal and implementing measures to ensure disposal areas meet all necessary requirements prior to use.
For more information, call 407/894-7555.
(This article was reprinted with permission of “Florida Transportation Builder” and was written by Angela Booker and Terry Riordan of FDEP.)