The world of environmental protection is a confusing and extensive environmental permitting process held tightly in the hands of expensive regulatory agencies. The next steps come with dollar signs attached, and doing the right thing is surrounded by a system that delays progress and lines the pockets of others. Land developers know this minefield well and know that the permitting process is the biggest test of patience during development.
Regulatory Agencies and Compliance Dance
Regulation exists at the local, state, and federal levels. Due to this, many regulatory agencies will approve permits and complete a project's environmental review. The permitting process can cause projects to be delayed weeks to months- burning money as the time passes. These agencies must evaluate the environmental impact a proposed activity will have, but at times the economic impact is also a factor in permitting approval. This environmental review process leaves developers feeling like they must beg for answers in a process they are required to be compliant with- making the environmental due diligence process a long game of telephone and unanswered questions. Additionally, these land developers pay environmental consultants exorbitant amounts of money to help them navigate the permitting process. During this time, the consultant will bill the client hourly to provide them with information available to the public, with some digging, or realistically should take significantly less time than was used to find said information.
The History of Environmental Permitting
National Environmental Policy Act
The National Environmental Policy Act (NEPA) is like the Constitution for the world of environmental law. All environmental laws are created and added to the lineup from NEPA. NEPA requires federal agencies to consider how their projects may impact the environment. The law requires an Environmental Assessment (EA) and Environmental Impact Statement (EIS) for federal projects. These lengthy documents are the never-ending CVS receipts of the environmental world that are too familiar to developers. These assessments provide a list of environmental red flags without further instructions on the actions a land developer needs to take for proper environmental compliance on their project site.
Following NEPA, other federal regulations such as the Clean Air Act, Endangered Species Act, and the Clean Water Act demanded more from developers. As the required permits increased, so has confusion. Land developers are consistently confused about when a regulation applies to their site, when a permit is needed, and how rules change with federal administrations. This saturated permitting world is not for the faint of heart. Let's briefly review how the permitting process gives project managers stress dreams.
Endangered and Threatened Plant Permitting
Knowing what species have a permitting requirement can be tricky when it comes to the Endangered Species Act. Even though plants receive federal protection under the Endangered Species Act, there is no federal penalty for impacting plants on private lands as part of an otherwise lawful activity (ESA Section 9(a)2). The rule originates from an old English common law where the king and parliament owned and managed all the wild animals while plants were the landowner’s property. This differentiation has been carried forward into the Endangered Species Act.
However, if a project is on federal property, consideration of effects on endangered or threatened plants is required.
Rather than receiving an all-encompassing endangered species map or next steps magic 8 ball, land developers try to navigate the information above while keeping their project on track. Personally, that doesn’t sound like a great way to spend time.
Permitting and Local Authorities
There is a catch for this process when it comes to state regulations. It is a federal offense to remove, cut, dig up, damage, or destroy endangered (but not threatened) plants on private property in violation of any law or regulation of any state, including state criminal trespass law. We see how the fine print attached to these regulations leaves a bad taste in land developers' mouths.
Cultural Resources Permits
Our country's historic resources are paramount to understanding our culture and society. As a best practice, considering teepee circles, pottery shards, buffalo kill sites, etc., is always recommended during project development. However, federal law (through Section 106 of the National Historic Preservation Act) only requires projects to consider their effects on cultural resources when the project involves a federal permit, federal lands, or federal funds. For example, suppose you impact wetlands within the United States Army Corps of Engineers; jurisdiction (per Clean Water Act Section 404). Cultural resources would then be considered at the discrete water location but not in the unregulated/private uplands. Alternatively, if your project is federally funded, up to 100 percent of the project may have to be assessed for cultural resources.
You may not always be off the hook. Some states also have measures written into their codes requiring consideration of cultural resources when lands owned by state entities are impacted.
Also, if you find human remains before or during construction - call the police, then contact your archaeologist. It's not a deal killer, but grab a chair because you may be there for a few extra weeks.
USACE Approves 99 percent of permit applications
What is a USACE Permit
A USACE permit for impacts on waterways and wetlands is one of the most used environmental permits. Because they don't want your project cluttering their desk, the USACE (and many of the states that regulate wetlands) have implemented general permits that allow construction to proceed without any permit paperwork, provided certain conditions are met. However, if you do need a permit, know that less than 1 percent of all requests for permits nationwide are denied.
What Does This Mean for Developers
Knowing if an environmental permit is required for a project site aids in project success. When a proposed action impacts water resources and requires a USACE permit, developers can feel confident their project will proceed. However, this doesn’t mean the project won’t be subject to delays, compliance hurdle jumping, and stress-relieving meditation sessions on the project manager’s part. There is comfort in knowing that 99 percent of permits are approved, but it almost begs the question, “how necessary and efficient are all of these hurdles?” Though environmental compliance is key to maintaining environmental quality and ensuring public health, the inefficient environmental permitting process shouldn't derail or severely delay projects.
Navigating Environmental Permitting
The environmental permitting process should not be this confusing. If this system is simplified, businesses and the environment will receive better attention and protection. Land developers would be participating in the environmental compliance process rather than being victims of it. Development and regulation are necessary for our society to thrive, but one should not sacrifice another. The environment shouldn't be at risk due to lazy or confusing permitting, and business shouldn't burn their money trying to navigate a system in which they have to participate. We believe a simplified permitting process means a successful project and a better-protected environment.