Wetlands Reestablishment -Episode Transcript
CLARICE:  Hello and good morning, everybody.  Thank you for joining us on this week’s Environmentally Speaking.MARISA:  Good morning.  I’m Marisa Desautel an environmental attorney.

CLARICE:  And I’m Clarice.  I’m coming in with questions, comments, topics.  And this week I thought it would be interesting if – last week we talked a lot about the drought that’s happening out in California, so we’re going to do a hard left.  We’re going to go into wetlands which makes a lot of sense.

MARISA:  And why is it a hard left?

CLARICE:  I don’t know.  I mean, I guess it could be a hard right.  I just tend to say left.

MARISA:  Wetlands to the left of us, wetlands to the right of us, here I am stuck in the middle with you.

CLARICE:  Oh, I like that.

MARISA:  Yeah.

CLARICE:  That song is going to be stuck in my head all day now.

MARISA:  Great.  Good.  Good.  Maybe we should like have some kind of a background intro with that music and people can just walk around all day singing about wetlands.

CLARICE:  Oh, I love it.

MARISA:  It’s not the worst idea.  You know, wetlands are really important and a lot of people don’t know why and they don’t know what they are.  When I was working at the Department of Environmental Management, they had this poster in the Office of Water Resources.  I don’t know where it came from, but I wish I had grabbed a copy.  And it was a kind of cartoon-ish poster, but it explained what wetlands were, what they looked like, why they were important.  And then I think the bottom of the poster said something like why should I care about wetlands.  And that was the crux of every single issue that came before the agency in terms of residential wetlands violations.

CLARICE:  I love their awareness.  They know.

MARISA:  [inaudible].

CLARICE:  Yeah.  They can’t tell you why wetlands are cool, but they’re going to just tell you why should you care today.

MARISA:  Yeah.  And it really got to the heart of the matter because even now in private practice the majority of the wetlands calls that we get from potential clients either dealing with DEM or the Coastal Resources Management Counsel are property owners that have received some kind of notice of violation or enforcement order to restore and folks don’t necessarily understand why.  What is this.  Why do I have to restore.  It was a mess out there.  It was invasive species and I made it better.  We get a lot of that.

CLARICE:  Yeah.  And also there’s that idea of why do I want this swampiness in my yard.  I mean, just at a base level it might not be visually appealing.  Sometimes there are mosquitos.  But, I mean, we could spend quite a bit of time talking about why we don’t like wetlands, but why should we care?  What did the poster say?

[0:02:59] MARISA:  The poster said and the science says that wetlands are so important because they act as a natural buffer system and water retention infrastructure, natural water retention infrastructure.  So if you’re in a neighborhood that floods, it could be because the wetlands have been impacted.  They also provide a natural filtration system for pollutants through the root structure and plants that exist in the wetland and they recharge groundwater.

So when you’ve got a storm or a storm surge, all of the water wants to make its way to the lowest point which is usually a wetland, a swamp, bog, marsh, river, stream and a vernal pool.  And it will – the water will collect there and then eventually make its way through infiltration down through the soil to the natural groundwater which is underneath the soil at a certain depth.  And then that groundwater is an underground network where you’ve got flow that occurs everywhere in every direction just about depending on the local topography.  And that groundwater serves to recharge the entire watershed, so it combats drought.  It’s just the natural system by which water is redistributed underground.  It also provides habitat for species that are important, nesting, foraging, breeding for various animals.

CLARICE:  The groundwater recharge makes a lot of sense.

MARISA:  Yeah.

CLARICE:  It seems pretty obvious, but it was just something that never crossed my mind.

MARISA:  Yeah.

CLARICE:  And that’s a little embarrassing considering that we have a wonderful episode with a Riverkeeper who talked all about the river systems and how it impacts groundwater.

MARISA:  Yeah.

CLARICE:  So nice call back to that episode.

MARISA:  Yeah.  And wetlands are a part of that system.  You’ve got freshwater wetlands that the Department of Environmental Management regulates and then you’ve got coastal wetlands which deal more with brackish or saltwater wetlands and that’s regulated by CRNC.

CLARICE:  So you had mentioned earlier about wetland restoration and we’ve had this in the past where a client is being asked to restore a wetland on their property.  What does that actually look like?  How do you do that?  Do you just go out there with a hose and soak it for a while and then wait for DEM to be like, look it’s back?

[0:06:03] MARISA:  No.  I’m trying to think.  I think someone has actually tried that.

CLARICE:  No.

MARISA:  It was unsuccessful.  Oh, yeah.

CLARICE:  Well, they did make wetlands.  It’s not the right kind.

MARISA:  Wetlands is one word, by the way, so it’s not wet lands.  It’s actually like –

CLARICE:  That’s what they did.

MARISA:  [inaudible].  So, yeah.  A couple of fine points here.  Wetlands restoration is one type of activity.  Wetlands rehabilitation is another.  And then the area within wetlands restoration has wetlands reestablishment, kind of a subcategory in my mind anyway.  Working in Rhode Island, that’s how the program seems to move.  So the wetlands rehabilitation is when the functions and values of a wetland have to be rehabilitated and that just presumed that there was some kind of impact that can be remedied through restorative work.  That’s a different area of the wetlands program than what restoration is and what I wanted to talk about today.

So the reestablishment is rebuilding something that was formerly a wetland but has been impacted to such an extent that it’s lost its functions and values.  And when you are talking about wetlands restoration, sometimes, at least at the Rhode Island state level, that type of activity is the result of someone receiving a notice of violation for impacting a wetland and you’re not necessarily restoring it in the same location that it previously existed.  What the hell does that mean.

CLARICE:  I have no idea.  Help me.

MARISA:  Yeah.  Right.  And as I was talking I’m like, that’s not intuitive.  So sometimes folks will undertake an activity that impacts a wetland to such an extent that it can’t be rebuilt.  For example, someone clear cuts a swamp or other wetland, fills it in and then builds on it.  DEM does have the statutory authority to go to superior court and try to force the respondent to take down the property and pull out the fill and replant everything.  However, what is more common in those circumstances is DEM will work with the respondent and allow them to at least attempt to rebuild a wetland somewhere else.  So you’re recreating the wetland that you impacted but in a different location.

[0:09:25] CLARICE:  Does that have – how successful is that?  Is moving a wet – okay.  That’s what I had in mind.  I was like just because you’ve destroyed a wetland in this area, what impacts does making a new one maybe a couple feet, a couple blocks away – I don’t know what the range is – but how does that affect everything?

MARISA:  That’s a great question.  And to deal with that question, the Department of Environmental Management has a policy, I think.  I don’t know if it’s in the regulations.  I haven’t looked at it in a little while, but there is a policy that if you are going to create wetlands elsewhere there’s, I think, a two to one ratio.  So you have to rebuild or you have to build a wetland twice the size as what you destroyed because the idea is you don’t know if it’s going to take, you don’t know if it does take how long it’s going to last, and you don’t know what the quality of it is going to be.  So I think that was the concept that we’ll try this, we’ll allow it in cases where it’s just not feasible to restore the wetland.  And to belt and suspenders this situation, we’re going to require a larger wetland because if it does work they’ll be twice the function and value of the wetland.  And that’s the theory.

CLARICE:  What does the process look like of making a wetland?  I imagine since you said a wetland is a low land –

MARISA:  Yeah.

CLARICE:  — there’s a lot of digging out.

MARISA:  Yes.

CLARICE:  Are you essentially – in my mind you’re creating a pond; am I wrong in that?

MARISA:  Yeah.  It could be a pond, yeah.  I don’t know enough about wetlands technical specifications other than there’s like a two to one slope or a three to one slope that you have to have.  There’s certain seed and plantings that you have to put in to ensure that species are going to be interested in coming in.  And location wise, if memory serves that is a topic that you negotiate with the state agency.

CLARICE:  How often have you seen people create new wetlands or essentially replace?

MARISA:  I saw it happen twice while I was working for DEM.  I don’t know if they’re still allowing it.  I imagine they are.  And the case that I was involved with had been going on for something like 20 years by the time I got involved.  We were in superior court and the judge had ordered something called a special master which sounds very Game of Thrones I recognize.

[0:12:28] CLARICE:  Who?

MARISA:  But it was someone appointed almost like a mediator or a third party, which you know all about, to come in and say here’s what I think we should do.  I’ve listened to both parties and I think this is what we should do.  And then the special master would report to the judge because the parties had been arguing for so long.

CLARICE:  Wait a minute.  Is this really a guardian ad litem for the trees?

MARISA:  No.  It’s more like a guardian ad litem for the court.

CLARICE:  That’s insane.

MARISA:  Yeah.

CLARICE:  Oh, that’s very cool.  All right.  So we’ve got a new term, a special master.

MARISA:  In that case that I’m talking about, the special master is a creature of the rules of civil procedure.  It’s not something that we came up with, you know, overnight.  But in that case the special master was a wetlands biologist and so he was able to advise the court as to what each party was saying and try to come up with a mediated resolution, so to speak.

CLARICE:  Very cool.  Okay.  So it doesn’t sound like this happens too often.  I imagine it’s a huge undertaking when it does happen.

MARISA:  Yes.  Because think about the implications of that type of resolution long term.  Who’s going to monitor whether the wetland is continuing to perform.  What happens if it doesn’t perform.  You’re right back in court with another enforcement action, so it can be a vicious cycle especially when you’ve got respondents that, hate to say it, but don’t really care about the environment.  Like, yeah, just dig a hole and put some hay bales next to it.  It will be fine.  You know, that’s not wetlands recreation or wetlands restoration [inaudible].

CLARICE:  Goes back to my original thought, going out there with a hose and hoping it works.

MARISA:  Yeah.

CLARICE:  Very cool.  All right.  So I don’t know if I actually had thought of the idea that you could recreate and reestablish a wetland.  I just kind of thought that they were a unique piece of nature and that was it.

MARISA:  Yeah.  I mean, definitely the state prefers that you reestablish and restore.  It would rather have you try to better an existing wetland as opposed to going and creating another one, but it does exist.  I mean, it is a policy that the State of Rhode Island will allow in certain cases.  So as part of looking at the restoration program in Rhode Island, I found that DEM has a Habitat Restoration Portal online.  So if you are interested in checking to see what wetlands are in need of restoration near you, there’s a way that you can go online and check that out.  It’s a partnership with, I think, the University of Rhode Island, yeah, where they’ve created this user-friendly webpage that you can check out, provides data information and tools to the public.  I mean, you and me can go on there – you and I.  You and I could go on there.

[0:15:59] CLARICE:  Webster’s says it doesn’t matter anymore.

MARISA:  Really?

CLARICE:  Yeah.  Me or I, now it’s kosher.  I know so much –

MARISA:  How can you just drop something like that on me?

CLARICE:  Listen, when I heard it grade school was ruined.

MARISA:  The amount of ridicule that I’ve faced in my life for saying me when I should have said I and all of a sudden it’s okay.

CLARICE:  Hey, listen.  You’ve got the whole rest of the day to e-mail them that they’re wrong.  It can be nice.

MARISA:  I was not consulted.  I was not consulted.

CLARICE:  So me and you can go onto that portal – you and I.

MARISA:  I’m so uncomfortable.  You and I.  Anyway, public can go on there and check it out.

CLARICE:  Very cool.  I mean, that could be fun if you live near a wetland if you’re curious about what’s in your town.  I mean, just a fun fact to know, something where if you could help out with it, cool.

MARISA:  I’m making this face because you said that could be fun.

CLARICE:  Do you not think I’m going to go back and look later?

MARISA:  You’re like way over selling this.  It’s not fun.

CLARICE:  I kind of want to know.  I’m nosy.  Let’s put it this way.  I’m nosy.  I want to know if my neighbors are doing a good job.  That’s really what it comes down to.

MARISA:  No.  You know what’s fun, happy hour.  That’s fun.  This is like something you do when you’re waiting to be seen by the dentist.  It’s not fun.  It’s informative but it’s not fun.

CLARICE:  I love the idea that you will go and look at wetlands while you’re waiting for a teeth cleaning.

MARISA:  Yeah.  Because you’re miserable anyway.

CLARICE:  You and me have something to discuss.  We have so many things to discuss outside of this.

MARISA:  Okay.

CLARICE:  So on that note everybody, who knew you can make a new wetland and sometimes the government is going to ask you to replace a wetland, so that’s a wild fact for today.  [inaudible].

MARISA:  Yeah.  And I guess the takeaway message, too, is if you have wetlands on your property don’t touch them.

CLARICE:  No.  Don’t.

MARISA:  Don’t touch them.  Don’t go in there and think you’re clearing out and improving everything, and.  No.  You’re not an expert.  You’re not a regulator.  The protections for wetlands are in place for a reason and the government will find you.  It might take them a little while, but they will find you and you will get some kind of enforcement action.

CLARICE:  Yeah.  Don’t poke that bear.

MARISA:  It’s not worth it.

CLARICE:  It’s not worth it.  All right.  We have some chatting to do about what’s fun and what’s not fun.  For everybody else, you can reach out to us on social media.  We are on Facebook, Instagram, Twitter at Desautel Browning Law.  Our e-mail is DesautelESQ – no, it’s not.

[0:18:59] MARISA:  Clarice, how many episodes have we been doing?

CLARICE:  Five.  I don’t know.

MARISA:  Five?

CLARICE:  Twelve.  I don’t know.

MARISA:  It’s like 40.  The same e-mail every time.

CLARICE:  Takes a dramatic sip of coffee.

MARISA:  It’s Help – H-e-l-p — @DesautelESQ.com.

CLARICE:  All right.  Stay tuned next week for a shift in outro responsibilities.  Thank you guys for joining us.  Have a good one, everybody.  Enjoy the rest of your week.

MARISA:  Bye.

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