Wetlands case could impact Bethany Beach

When officials and citizens of Bethany Beach tackled the issue of how to use the land owned by the town at the corner of Routes 1 and 26 at a public hearing in May, part of the equation remained an unknown.

Former mayor Joe McHugh insisted the town needed to further investigate the designation of federally protected wetlands on the property, seeing as such wetlands have traditionally been protected from any sort of development — even the water features Town Manager Cliff Graviet had been investigating creating on the site.

With nearly half of the site designated as 404 or federally protected wetlands, McHugh said the impact of a pending case before the U.S. Supreme Court, and one previously decided by that court, could be a major factor in how much land the town had available for use in the project and what they could and should do with it. (McHugh has championed a community center, while the town council has favored only open-space uses.)

That pending case — Rapanos et ux., et al. v. United States, also including the case of Carabell et al. v. United States Army Corps of Engineers et al. — was decided by the U.S. Supreme Court on Monday. And the 5-4 decision may favor property owners’ rights to develop property currently designated as wetlands by the Corps of Engineers.

The justices in their decision remanded the cases for further action, saying the lower courts had applied the wrong standard to the case in sustaining the Corps’ wetlands and protection findings.

In question is the Corps’ ability to designate as protected under the Clean Water Act (CWA) wetlands that aren’t immediately adjacent to permanent or navigable waters of the United States as defined by the Corps. And while the area’s canals, rivers and ocean are generally considered “waters of the United States,” the question in the case of the former Christian Church and Neff properties is much the same as in the two cases combined under Monday’s Supreme Court decision.

In that decision, the majority opinion reads, in part: “…only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between the two, are ‘adjacent’ to such waters and covered by the Act.”

Further, the majority opinion states: “Establishing coverage of the Rapanos and Carabell sites requires finding that the adjacent channel contains a relatively permanent ‘wate[r] of the United States,’ and that each wetland has a continuous surface connection to that water, making it difficult to determine where the water ends and the wetland begins.”

Certainly, that statement would seem to indicate that the “wetlands” area on the Town of Bethany Beach property would need to have a continuous surface connection to other “waters of the United States” to be protected from development, and according to previous owner Joan Neff and Graviet, that simply isn’t the case.

Neff told the town council in May that she’d never been notified of any wetlands designation on her property. And Graviet, after that May public hearing on uses for the property, said there were only sporadic spots of surface water and some significant areas that were muddy or damp most of the time.

He said some of the wetlands determination had relied upon the presence of wetland plants and that much of the water on the property was the result of pipes buried under it and the impermeable road surface surrounding it.

As it stands, Graviet said, “We had stopped the process with the Corps of applying for permits to convert the driest, most dirt-like area to a water feature,” to await the Supreme Court decision in the Rapanos case.

But now that it’s been given — and apparently in favor of the town’s right to develop — a new determination of wetlands on the property (and permitted uses) may still be a long way off.

Graviet said Tuesday that he hadn’t yet read the 104-page opinion himself and expected it would take Town Solicitor Terence Jaywork some time to fully review the decision. Additionally, he said he expected it to take some months for the Corps to review the decision itself and make any policy changes that would come from the case.

McHugh wasn’t as cautious in his reaction to the decisions, saying emphatically of the property on Tuesday, “There are no wetlands.” He still holds out hopes that the council will take advantage of any additional developable land to build a year-round facility that could be used by the town’s seniors, residents and visitors for recreational purposes regardless of the weather.

Graviet, while not commenting directly on McHugh’s proposal, said the timetable for making a final plan for the property and beginning any construction work is long enough that the town will have “plenty of time” to make any changes once the impact of the Rapanos case has been fully developed with the Corps.

And the town has a head start on plans for the site, regardless. Graviet said the process thus far had been a two-part one to plan for both circumstances: (1) working with a Corps-associated engineer on allowed uses with wetlands present, and (2) working with a general landscape architect who had considered the property’s potential without any wetlands designation.

Graviet said, “I expect the town council will proceed with a charter amendment” in the meantime. The final uses for the property could be changed or expanded even after that point, with a supermajority vote of the council. Or, if additional portions of the property are opened up for development, the town could decide to expand plans for the site but remain within whatever uses the council puts in place with the charter amendment.

That amendment has not yet gone to final draft or council vote, but council members have voiced support for naturalized, open-space uses including walking trails, as well as a new home for the town’s children’s playground. They have also been asked to consider a dog park. And there has been mixed public support and opposition for other uses, such as a community center, and ball fields or courts.