MARISA: Hi, everyone. Welcome to Environmentally Speaking. This is Marisa Desautel. I am an environmental lawyer with a few decades of experience.CLARICE: Hi, guys. It’s Clarice here. I am here to bring you your questions, comments, and topics to talk about. And we do not have a listener request today. This one is coming from me. We recently had a lot of people calling in asking about building on wetlands, owning wetland property. And it’s more than just I own this piece of property that just so happens to be damp sometimes and I’d still like to build a house. There’s a lot involved, so I wanted to talk a little bit about that today.

MARISA: Okay. Specifically, yeah. And firstly to start, everyone should know that there are two types of wetlands. In terms of jurisdiction in Rhode Island there are coastal wetlands and then there are freshwater wetlands. If you’re dealing with freshwater wetlands, it’s the Rhode Island Department of Environmental Management that regulates them. And if you’re talking about coastal wetlands, it’s the Rhode Island Coastal Resources Management Council that handles those.

So for purposes of our conversation today, I’m going to talk about freshwater wetlands because in my experience they’re more common. And to start everyone should also know that the state law that regulates freshwater wetlands is called the Freshwater Wetlands Act. It talks about how the public policy of the state is to preserve the purity and integrity of freshwater wetlands, buffers, and floodplains, so three different categories of preservation listed in state law.

CLARICE: Oh, and we’ve had a lot of people call and ask about buffers specifically. To narrow in, a lot of people are talking about or asking us what is a buffer, how big of a buffer do they need. So let’s start with what’s a buffer? What does that look like?

[0:02:34] MARISA: A buffer generally – I’m just looking up the statutory definition here as we’re talking so I can read that to you. But a buffer is an area of undeveloped vegetated land adjacent to a freshwater wetland that has to be maintained and retained in its natural condition or is to be created to resemble a naturally occurring vegetated area. So that’s kind of a paraphrasing of what the definition is in state law.

But for a layperson a buffer is a setback. It’s land adjacent to the edge of the wetland itself that cannot be altered. It has to remain in its natural condition. And the reason that that’s so important is buffers provide habitat, travel quarter, nesting, feeding, foraging grounds for various species that live in those areas. And without the buffer area, you are then impacting the entire ecosystem, but you’re impacting immediately the bugs, bunnies, birds, critters that live in, on, or adjacent to a freshwater wetland.

CLARICE: So I’ve always had in my head this vision that a buffer is kind of like a natural wall. And in reviewing past DEM documents, I saw a lot of times DEM suggesting things that would be a buffer. And it was like different types of shrubs, of bushes, of plants to put in that area that seem to be needed.

MARISA: Yeah.

CLARICE: Is that common for DEM to have specifications of what should be included in a buffer?

MARISA: Well, I think what you’re talking about is the order section of something called a notice of violation that DEM issues to someone when they have evidence and grounds to believe that someone has altered a buffer without approval first from DEM. So we can talk about notices of violation, but I think the other part –

CLARICE: [inaudible].

[0:05:06] MARISA: Yeah. The other part of your question had to do, I think, with certain types of setbacks and certain types of buffers. That comes from state law and DEM regulation for freshwater wetlands where the jurisdictional area that is subject to DEM regulation depends on the type of freshwater wetlands that you’re talking about. So for example, if you own property where there’s a river or a stream the jurisdictional area is 200 feet from the edge of that river or stream. Again, depending on which type of wetland you’re talking about there’s a different jurisdictional area, the setback from the edge of the wetland itself.

The buffer is also considered a jurisdictional area, but that’s the section that we talked about that needs to remain in its natural vegetated state. If someone goes in and removes the natural vegetation by clearing, grading, and filling, then you’ve altered this buffer area and DEM will order you to restore it. And that’s when the type of plants and the type of seed and soil mixture comes into play where DEM will say, here’s what you need to plant. You know, you need to put 25 trees in ten feet apart, whatever it is. They have the wetlands biologists on staff who are experts at looking at a particular alteration and making a decision on what you need to do to restore the buffer.

CLARICE: And going back to DEM and that overarching group that kind of oversees wetlands and the regulations. There was a recent change to substantive objections, or?

MARISA: Yeah.

CLARICE: Oh. All right. Tell us your feelings on that.

[0:07:17] MARISA: Oh, man. Yeah. So I wasn’t personally happy about the change, but, you know, no one asked me. The state law that was changed fairly recently – I’m just looking at the – it looks like maybe 2015 was the most recent update to the law. But it’s Rhode Island general law 2-1-22 Section B as in boy that talks about objections to a proposed alteration of a buffer area or alteration of a freshwater wetland itself. The previous iteration of this section of state law that I referenced indicated that if a municipality issued a formal objection it constituted an automatic denial by the Department of Environmental Management. Currently the law says something different that if DEM receives something called a substantive objection then DEM will schedule a public hearing.

Why is this important. Well, for those attorneys out there that have municipal clients or folks that live in a city or town who appeal to their city council for assistant with objecting to a project, the municipal entity filing a formal objection no longer constitutes an automatic denial. Instead DEM has this broad discretion to make a determination about whether objections received are of a substantive nature. So you can imagine how ambiguous that might be and subjective. Of course DEM is the expert. But the latitude of substantive nature objection is a huge departure from what the state law used to say about municipal objections.

[0:09:31] CLARICE: It sounds like – and maybe I’m mishearing this or misinterpreting this, but it sounds like you’re no longer guaranteed to have that matter heard if it’s discretionary.

MARISA: That’s right. So let’s say you as a property owner receive notice that your neighbor is looking to alter a pond that you share access to by cutting down a bunch of naturally protected vegetation and maybe putting a dock in or something to that effect. And you write in and say, hey, look, I have an objection. I’m an owner of the adjacent property and the area is subject to erosion and stormwater flowage and I would prefer that the applicant not cut down the vegetation, or. You know, you think that your objection is substantive. And DEM receives it and says, no, we think it’s okay.

Not only do you not necessarily hear back on that opinion, but that’s the end of it. You’re not necessarily going to have an opportunity for a public hearing. You submit your comments. DEM makes the decision and the next thing you know you’re adjacent neighbor is cutting back vegetation. Again, not to speak poorly of DEM. They’re the experts. They know what they’re doing. But it is a huge departure in process and due process from the resident’s perspective and the municipality’s perspective.

CLARICE: I can definitely see how it leaves objectors and oftentimes neighbors in a sticky situation now.

MARISA: Yeah. Yeah. It can be frustrating.

CLARICE: Is there anything else that we should talk about with wetlands?

MARISA: I mean, there’s so much to talk about with wetlands. I feel like we should probably do another podcast on it.

CLARICE: Oh, we can have a part two. That’s exciting.

MARISA: Exciting?

CLARICE: Yeah. We’ve never had a part two. Part two feels like a legacy thing in podcasts.

MARISA: Okay. Great.

CLARICE: I don’t know. I think so.

MARISA: I’ll defer to you. [inaudible].

CLARICE: Of the binge listener of podcasts, part twos are always intriguing.

[0:12:05] MARISA: That’s right.

CLARICE: Unless our listeners write in and say, please, dear Lord, stop that one.

MARISA: Please stop. Stop the wetlands.

CLARICE: Go back to the drylands. You did better there.

MARISA: Yeah. All right.

CLARICE: All right. Well, on that note, if you hate us talking about wetlands let us know. Let us know if you want to hear us talk more about wetlands and anything else going on. Have a good one, everybody.

MARISA: Thanks.