A national debate has erupted from a mosquito-infested, heavily wooded swamp in western Cook County.
The fate of this unlikely piece of property was decided by a January 2001 U.S. Supreme Court decision that unleashed a heated war of words between environmentalists and real estate developers. The hot issue could result in a new law for Illinois.
It’s all about wetlands. What are they? Who controls them? Can builders build on them? Can they be saved? Should they be saved?
And where are these wetlands?
“Historically, Chicago used to be one great big bog. Most of the area was wetlands,” said John Ryan, president of Land and Water Resources, a wetlands mitigation and banking firm based in Rosemont.
He described three conditions for a site to be called a wetland: It must be wet within a foot of the surface for two weeks out of the year; it must consist of wetlands soils; and wetlands plants must be present.
Ryan called the controversial site in western Cook County near Bartlett “an old gravel pit that became a wonderful bird habitat.”
The dispute began in the mid-1980s, when officials of 23 northern suburbs formed the Solid Waste Agency of Northern Cook County (SWANCC) and paid about $5 million for 410 acres at the edge of Cook County and 123 acres in Kane County.
The plan was to turn the former gravel strip mine into a trash dump, known technically as a balefill.
However, the plan was blocked by the U.S. Army Corps of Engineers, which maintained that the woodland site contained 17.6 acres of ponds used by migratory birds. In 1994, SWANCC sued the corps, setting the stage for the Supreme Court ruling.
The court’s decision in favor of SWANCC limited the federal government’s authority to regulate isolated wetlands based on their use by migratory birds.
Now isolated wetlands — those not connected to a river or stream — are without federal protection.
Builders welcomed the decision because it opened previous wetlands sites to development.
“The SWANCC decision took everybody by surprise. It suddenly created 100 percent buildable land,” said John Sopata, president of Chicago-based Wetlands Solutions Inc., a wetlands consulting firm for developers.
However, a state law to fill the regulatory void is being sponsored by Rep. Karen May (D-Highland Park).
House Bill 422 has been passed to the State Senate for possible consideration during the General Assembly’s veto session that begins the second week of November, May said.
She noted that the bill has been opposed by the Illinois Association of Realtors and the Home Builders Association of Illinois. “The Realtors and home builders think the bill is anti-growth,” May said.
“But some builders say that homes sell faster at developments where natural wetlands are respected. One of them is Prairie Crossing in Grayslake,” she said.
May pointed out that her bill would protect only 50 percent of the isolated wetlands in Illinois, “only the rare, high-quality wetlands.”
She said it is important to protect wetlands in the Chicago area because of the impact on flooding. “Each acre of wetlands absorbs 1 million to 1.5 million gallons of flood water. Wetlands farther out in the suburban area could affect closer-in suburbs, such as Highland Park.”
She added that wetlands also filter out pollutants.
“Illinois already has lost 90 percent of its wetlands. It still has 917,765 acres of wetlands, with about 12 percent being isolated wetlands,” she said.
May’s bill would protect wetlands throughout the state, while respecting the rights of local governments to tailor regulations to fit specific conditions.
This provision for local control is opposed by the Home Builders Association of Illinois.
“We’re not opposed to regulation, but House Bill 422 does not provide for a uniform statewide system for the regulation of isolated wetlands,” said Mark Harrison, executive vice president of the home builders group, based in Springfield.
“It’s bad legislation. The bill creates a patchwork of regulations that will vary depending on where you live. We believe this is a substantial burden on homeowners, developers, farmers and businesses,” Harrision said. “The bill also fails to set limits on fees.”
Harrison noted that it also is opposed by such groups as the Illinois Farm Bureau, the Illinois State Chamber of Commerce, the Chicago Federation of Labor and the Illinois Manufacturers Association.
Jack Sorenson, president of U.S. Shelter Group, a home building firm based in Elgin, said builders want predictability. “A state law would be fair and give us one set of rules.”
Sorenson said some local municipal boards have been influenced by “overzealous environmentalists with no-growth agendas.”
In addition, he said the Army Corps sometimes can be overprotective. “At one of our projects in a northwest suburb, an area of about 3 by 30 feet, with only a couple of wet spots, was labeled a wetland and had to be mitigated. Builders want to protect authentic wetlands, but this was insignificant.”
Sharon Oxley, executive director of the National Center for Housing and the Environment, a non-profit research organization based in Washington D.C., said: “State regulation can be an efficient means of regulating isolated wetlands because states are free to tailor their wetlands programs to local conditions and programs.”
Nationally, builders have criticized the wetlands permitting process as too expensive and slow and for failing to rank wetlands of differing quality.
The environmentalists finally won at the location where the SWANCC case started — the wild, wooded piece of property in western Cook County.
Despite the legal victory in the 16-year, $30 million battle to turn the site into a landfill, it remains in a natural state. The ponds, surrounded by trees and covered with algae, remain as possible stopovers for migratory birds.
After SWANCC won the right to fill the property with refuse, it decided against doing that. Instead, 283.5 acres were sold for $21 million to the Illinois Department of Natural Resources for a new park.
In addition, 125 acres of flat, open land at the northwest corner of West Bartlett and Gifford Roads was sold to Realen Homes for a 300-home subdivision expected to open for sales in August, according to Realen marketing director Bob Riccio.
Though included in the SWANCC land, the Realen tract was never part of the bird sanctuary, to the west.
But the wetlands debate continues.
Though isolated wetlands are no longer protected in Cook County, they are in DuPage, Lake and Kane Counties.
Builders are required to apply to the Army Corps to determine whether a wetland is isolated. If it is, it can be filled in.
Or, wetlands mitigation may be required. This means on-site mitigation, which results in a portion of the proposed subdivision being left open, or the builder can buy wetlands credits from a wetlands bank at a cost of $40,000 to $80,000 an acre, depending on the county.
“Because of the demand for new building sites in the Chicago area, most of the high-and-dry, prime land already has been developed. What’s left is less desirable and may have wetlands,” said Sopata of Wetlands Solutions.
Builders want to be thought of as environmentally friendly, but they find fault with the present system.
“Wetlands are very important. They should be preserved. We need to have open space,” said David Hoffman, chairman of Northbrook-based Red Seal Development. “But abuse occurs when bureaucrats declare that a rut in a field made by a farmer 100 years ago is a wetland. It happens over and over. If this saved a natural habitat or wildlife, it would be worth it, but it doesn’t.”
“One acre is not a habitat,” he added.
“Protecting wetlands and development are not incompatible,” said Hoffman, who pointed out that his firm protected a large wetland at its Hybernia development in Highland Park.
“The problem is overzealous developers and overzealous opponents of development,” he said.
He suggested that outside experts should be hired to determine what is a wetland. “This would save all the money being spent by bureaucracies and developers in fighting about this issue.”
Jerry Howard, CEO of the National Association Home Builders, based in Washington D.C., said that the permitting process to check for wetlands adds “a couple thousand dollars to the price of an average home. If mitigation is necessary, it can add up to more.”
Howard charged that the federal government “arbitrarily extended the definition of wetlands beyond absurdity, beyond the intent of Congress to include ponds and swampland.”
He said the wetlands issue has mushroomed as environmental groups try to invoke the Clean Water Act to stop development. “Some environmental groups try to thwart development even on ground that is not wet on the surface,” said Howard.
He added that there are more than 8 million isolated wetlands in the U.S., so the issue arises frequently, even on land as little a quarter-acre. “This can delay a project and add to its cost.”
Sopata estimates that 5 percent to 10 percent of available land in the Chicago area will require some type of wetlands mitigation. Mitigation usually requires creation of a 1.5-acre wetland for each acre of natural wetland lost.
“When developers respond to an Army Corps requirement that involves preserving on-site wetlands, they usually put a positive spin on it. They will point out to buyers that the project contains all this open space. But it is there not out of the goodness of their heart,” Sopata said.
He added that homeowners are not aware of the role wetlands play in a development because they are focused on the finished product.
“Almost any good-sized site has some kind of wetlands,” said Mark Malouf, chief operating officer of Montalbano Homes.
He suggested that there should be a clearer definition of wetlands according to their quality. He described a Montalbano project in Waukegan in which a $200,000 bridge had to be built over dry land between two low-quality wetlands.
However, Malouf added that wetlands at a development can add value. “People like open space. Charging lot premiums next to wetlands can offset their cost.”
“The SWANCC decision was at first thought to be a victory for developers, but it has turned out to be a process that slows down development,” said Ryan of Land and Water Resources. “Projects have been held up, several more than six months, while the corps determines if the wetlands on the property is isolated.
“The definition of an isolated wetland is the billion-dollar question. There are many different interpretations. The situation can be a nightmare for developers,” Ryan said.
He pointed out that some wetlands that appear isolated actually are not because they are connected underground with a nearby creek.
Ryan believes that a statewide wetlands bill will be passed by the Illinois General Assembly.
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Building on wetlands
A U.S. Supreme Court ruling on a western Cook County wetland left such isolated tracts without federal protection from development. Now Illinois is considering a law to regulate at least a portion of remaining wetlands.
WETLANDS DEFINED
Areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.
Wetlands may support both aquatic and terrestrial species of plants and animals.
The prolonged presence of water creates conditions that favor the growth of specially adapted plants (hydrophytes) and promote the development of characteristic wetland (hydric) soils.
Isolated wetlands, such as the Cook County site, are those not connected to a river or other stream.
Source: Environmental Protection Agency.
Chicago Tribune
