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OEC Files Suit to Save Protected Public Wetland

Ohio Environmental Council, March 6, 2013

Proposed ODNR “land swap” with a private developer would break promise to preserve rare, protected natural area.

The Ohio Environmental Council recently sued the Ohio Department of Natural Resources (ODNR) to prevent a proposed “land swap” that would destroy nearly all of a rare, 17.8-acre natural area that the ODNR accepted in 1996 with the express obligation to preserve the area “in perpetuity” for the people of Ohio.

The OEC contends that the proposed “land swap” violates the requirement that the Sawmill Wetlands be permanently preserved and the state’s public trust obligations.

The Sawmill Wetlands, located in Columbus, contain a dense mature forest and  8.6 acres of natural wetlands, which reduce flood waters and naturally clean our water. The Sawmill Wetlands were classified as high quality by Ohio EPA and are one of only a few remaining high quality wetlands within the I-270 outerbelt. 

Located in a dense, urban area, the Sawmill Wetlands provide critical wildlife habitat, supporting 140 different identified bird species and a breeding population of salamanders.

ODNR accepted the responsibility to care for the Sawmill Wetlands in 1996 as part of a developer’s permit requirements through the U.S. Army Corps of Engineers (USACE). The permittee preserved the Sawmill Wetlands in order to compensate for other wetlands they destroyed in the development process.

When the Sawmill Wetlands were transferred to the ODNR, a condition was placed on the property deed that required the entire property “be used and occupied solely for public purposes.” Last year ODNR entered into a purchase agreement to transfer the Sawmill Wetlands to a private developer in exchange for a “replacement property.”

The “replacement property” ODNR would receive is larger but of lesser quality, does not provide the same resources as those at the Sawmill Wetlands, and has a number of costly challenges. According to the current owner, a portion of the replacement property is contaminated with diesel fuel, a hazardous pollutant.

In fact, previous environmental assessments estimated that it would cost anywhere from $50,000 to $1 million to clean up the diesel and make the replacement site suitable for public use. Franklin County Metro Parks once considered purchasing the site but walked away because of the estimated clean up costs.  

Also, the site contains a significant pile of unsightly fill material that requires topographical grading. Most importantly, the replacement site does not contain any wetlands, and is entirely unsuitable for wetland creation, according to ODNR and Ohio EPA staff. 

This is not a “like-for-like” exchange and violates the purpose for which the Sawmill Wetlands were transferred to ODNR.

The lawsuit seeks to:

  1. Enforce the “preservation in perpetuity” requirement on the Sawmill Wetlands and thereby keep alive the promise that property given to the state for “preservation in perpetuity” is truly protected forever;
  2. Ensure the site remains dedicated to the people of Ohio;
  3. Ensure the state meets its “public trust” obligations; and
  4. Prevent the sale of state property when it is not advantageous to the state and, thus, contrary to state law.

The OEC contends that transferring the Sawmill Wetlands to a private developer poses a number of serious implications. This proposed transfer would further the destruction of Ohio’s few remaining high quality wetlands – Ohio already has lost over 90% of its original wetlands. 

The Sawmill Wetlands were supposed to be protected  permanently as a result of a federal regulatory program. Allowing a protected natural area to be sold and destroyed  sets a dangerous precedent that could threaten other protected wetlands across Ohio. Additionally, state lands are held in trust for the people of Ohio.

The transfer of the Sawmill Wetlands violates the state’s public trust obligation to preserve this protected area for the people of Ohio.

“This is not a “like-for-like” exchange of property. It violates the purpose for which the Sawmill Wetlands were transferred to ODNR, and the fiduciary duty ODNR owes to the citizens of Ohio,” said Cathryn N. Loucas, OEC Staff Attorney.

“This proposed land swap sets a dangerous precedent and sends the message that protected natural areas managed by the state for the citizens of Ohio are not truly protected,” said Kristen Kubitza, OEC’s Director of Water Policy & Outreach. “The preservation of this wetland area is critical for the health of the local watershed, wetland protection across the state, and the enjoyment of natural areas by the public.”

The OEC and others reached out to ODNR to seek an alternative to the proposed “land swap.”

However, despite these requests and significant public outcry, it appears the parties are moving forward with this handover of public land.

The OEC’s lawsuit asks the Court to stop the transfer.