Waterfront Hazards
By Matt DiCianni
Photo: © Can Stock Photo Inc. / dkaubo
It seems like every day the Environmental Protection Agency (EPA) and other governmental agencies are passing a new regulation prohibiting yet another activity on waterfront property. Woe to the park district that runs afoul of one of these regulations, as it may lead to lawsuits, fines, and possibly even jail time for the administrators. In the face of these penalties, here are four approaches every park district administrator must use to keep the district out of trouble and retain his or her job.
1. Do not build in a floodplain. A floodplain is the land around a body of water that becomes covered during periods of heavy precipitation. A floodplain is defined broadly, and usually includes the land that is submerged during the largest flood every 100 years. Floodplains exist around lakes, rivers, streams, and even some larger ponds. The area defined as a floodplain can sometimes change based on new land uses around the body of water, changes in the size of the body of water, or the construction of flood-mitigating systems, such as dams and retention pools. Additionally, floodplain maps can be viewed on FEMA’s website at msc.fema.gov. Construction in floodplains is heavily regulated under state and federal law. A permit, usually issued by the state department of natural resources, must be obtained before any construction will be authorized. This construction is not necessarily limited to the erection of new structures. A park district must obtain a permit each time it seeks to expand, replace, or even minimize a structure. In fact, a permit is necessary even to rebuild a structure that has been destroyed in a flood. However, it usually is not necessary to obtain a permit for the erection of a temporary structure. Severe penalties exist for unauthorized floodplain construction, including the demolition of the structure, a return of the floodplain to its pre-construction condition, and fines. If park district property is located in a floodplain, this does not necessarily mean that construction is prohibited. The park district can apply for a variance, which may permit the structure to be built without adherence to the state’s floodplain regulations. Alternatively, the state can issue a permit that allows for the structure to be built in compliance with the state’s floodplain regulations.
2. Be careful what goes into the water. In addition to being mindful about what is put on the land, park districts should be careful about what is put into the water. The Clean Water Act, which applies to all bodies of water that are commercially navigable, generally including major rivers, tributaries to those rivers, large lakes, and oceans, regulates the dumping of pollutants into large bodies of water. The regulation generally does not include ponds, streams, small lakes, or wetlands. Pollutants include waste from septic systems, storm sewers, construction sites, pesticides, and even heated water. A permit authorizing the discharge of these materials into the water may be obtained from the EPA. However, the EPA under President Barack Obama’s administration has been reluctant to grant these permits. State clean-water acts also exist that extend these prohibitions to smaller bodies of water, with state EPAs issuing permits and enforcing these laws. Penalties for violating the Clean Water Act are severe: a maximum of $25,000 each day the act is violated, and a maximum of 15 years imprisonment for knowing violations. Therefore, it is important for any park district planning to discharge sizable quantities of any material into the water to contact the EPA to determine whether a permit is needed.
3. Do not mess with endangered species. Because endangered species live on waterfront property, any park district that harms one of these species could be in serious trouble. While most administrators have no intention of harming an endangered species, many groups are surprised to discover which actions are considered harmful and thereby illegal. However, construction within the habitat of an endangered species, known as a critical habitat zone, can also result in fines. Any development that impairs an endangered species’ ability to breed, gather food, or obtain shelter is a violation of the Endangered Species Act. Furthermore, if a park district knows that individuals are entering its property to harass an endangered species, and does nothing to stop the harassment, the park district could be held responsible for any injuries suffered by the animal. Penalties for harming, capturing, or killing an endangered species can exceed $25,000 for each species harmed. Most endangered species live near the West Coast and in the Southeast, so before a park district in any of these areas undertakes development on waterfront property, it should be aware of any critical habitat zone. A map of these zones is available on the Fish and Wildlife Service’s website at www.ecos.fws.gov/crithab . A list of every endangered species can also be found at www.fws.gov/endangered/species/us-species.html .
4. Think twice about a diving board or waterslide. Every park district administrator who oversees a waterfront recreational facility must consider the risk of a diving board or waterslide. Indeed, one does not need to scour the newspapers to find stories about districts facing lawsuits for injuries occurring on these aquatic structures. The good news is that districts likely will be immune from any suits resulting from injuries at free public waterfront facilities. Districts generally do not have a duty to supervise patrons, although they must be warned of known dangers. The bad news, however, is that park districts have generally been found liable for injuries, especially if the diving board or waterslide is in shallow water, very high, or primarily used by younger children. If a park district charges a fee for patrons to use the diving board or waterslide, it is virtually certain the district will be liable for any injuries occurring on these structures.
Matt DiCianni advises park districts, municipalities, and other local government entities about environmental law, land use and zoning, and liability minimization. DiCianni is a graduate of Notre Dame Law School, and is an associate at Ancel Glink Diamond Bush DiCianni & Krafthefer. For any questions related to this article, or any other matter involving local government or environmental law, do not hesitate to email him at mdicianni@ancelglink.com .