Legal Issues with Erosion Control and Marine Contracting

The two pictures below are erosion control projects installed in the same community but by two different contractors under two different contracts.  The differences are obvious: the first picture has stone that is tightly fitted and nicely sloped.  The second picture on is not fitted and not evenly sloped.  Walking on loose stone is dangerous, and undercutting by the waves will rapidly make it more so.

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Here at Baylaw, I have had multiple cases where the primary issue was the quality and effectiveness of rip rap and erosion control measures.  The most frequent area of dispute is that the landowner anticipated a structure that was fitted and safe to walk on and the contractor delivered something that was more akin to a pile of rocks.  Such a dispute becomes a contest over the terms of the contract — which is often silent on the issue.  Without a term, expert testimony is needed to state that job was not done to a workmanlike standard, and this can be a much more difficult fact to prove.  A clear contract term at the outset is much preferable.

When the time comes to construct erosion control measures, this means that property owners need to identify a person that can design the structure to meet the terms of the code and a contractor that can do a safe, effective and attractive installation.  Sometimes the contractor may also design the project, sometimes it is better to work with a person that focuses on permits.  In either case, it is strongly recommended that the permit designer and the contractor work together on the plans to assure that the specifications are clear and can be executed in a cost-effective manner.  A land owner should also require a commitment as to what the project will look like at completion.  Unless a landowner specifies tightly packed stone (such as is typically found in government projects), there is the chance the contractor will simply dump the stone in a loose pile and leave it at that.

In the event of a dispute, one of the things to keep in mind is that marine contractors in Maryland are now required to be licensed by Maryland for any “ means construction, demolition, installation, alteration, repair, or salvage activities located in, on, over, or under State or private tidal wetlands.” Md. Code Ann., Envir. § 17-101.  Such services include dredging and filling, construction of boat houses, boat lifts, piers, etc., and installation and repair of erosion control measures.  There is a line of cases in Maryland indicating that a contractor that is not properly licensed cannot require payment in Court, so both landowners and contractors should pay close attention to the licensing requirements.

If the contract is not clear about the quality of the completed work, careful review of all discussions should be made to consider whether any photographs or other visual indications were discussed that would indicate the final product.  If a contractor shows a homeowner beautifully constructed, individually laid stone when giving the estimate and obtaining the business, then the landowner has the right to expect the sort of quality that was indicated (unless, of course, there was also discussions of other projects and the various costs that one might anticipate for the lower quality work).

The ability of a landowner to constuct erosion control measures is of increasing importance due to the rise of the waters in the Chesapeake region.  On December 9, 2013, The United States Coast Guard released a statement that the waters were rising along the Chesapeake at a rate of between 3.2 – 4.7 millimeters per year (the equivalent of the thickness of 3 to 5 pennies per year).  These changes were partly due to sea-level rise associated with climate change, partly due to the land subsiding. The subsidence is accelerated by human uses of groundwater.  (Here is the USCG report).  Most of the Chesapeake region consists of soft soils, and rising waters immediately attack and erode the shoreline.  Historical shoreline comparisons (like this one of the Annapolis area) give a sense of how much change has occurred in a few generations.

These natural forces work against the interests of owners of waterfront property, who would like to preserve and protect the land they have bought and paid for — and this leads inevitably to issues with the law.  There are significant issues with environmental protection and the critical areas protections — that is not the primary focus of this article, however.

Under the environmental rules, waterfront landowners to make improvements to allow for improved access (typically piers) and to prevent erosion.  “The person may make improvements into the water in front of the land to …  protect the shore of that person against erosion.”  Md. Code Ann., Envir. § 16-201.  The 2008 amendments to the Wetlands Act, however, restricted a landowner to “nonstructural shoreline stabilization measures that preserve the natural environment, such as marsh creation” except in areas specifically designated for structural shoreline or where the owner demonstrates that non-structural stabilization will not work.

 The bottom line — careful planning is crucial to avoiding issues.  If issues arise, however, capture the evidence; write down the events and if resolution cannot be reached, contact a lawyer that is knowledgeable in the particular issues.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law and has been in private practice in Maryland ever since.