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3 Surprising Truths about Environmental Permitting

by Transect Team, on Aug 13, 2018

1. Endangered and threatened plants aren’t protected on private lands.

Even though plants are federally protected under the Endangered Species Act, there is no federal penalty for impacting plants on private lands as part of an otherwise lawful activity[1] (ESA Section 9(a)2). The reason for this dates back to old English common law where the king and parliament owned and managed all the wild animals while plants were considered the property of the landowner. This differentiation has been carried forward into the Endangered Species Act[2].

However, if a project is on federal property, consideration of effects to endangered or threatened plants is required.

Also, there is a catch 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.

2. Cultural resources aren’t protected for private projects unless someone died.

Our country’s historic resources are paramount to our understanding of our culture and society, so consideration of teepee circles, pottery shards, buffalo kill sites, etc. is always recommended during project development as a best practice. However, federal law (through Section 106 of the National Historic Preservation Act) only requires projects to consider their effects to cultural resources when the project involves a federal permit, federal lands, or federal funds. So, for example, if you are impacting wetlands within the U.S. Army Corps of Engineer’s jurisdiction (per Clean Water Act Section 404), cultural resources are 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.

Oh, and if you find human remains before or during construction – call the police, then call your archaeologist. It’s not a deal killer, but grab a chair because you may be there for a few extra weeks.

3. USACE approves 99 percent of permit applications.

A USACE permit for impacts to waterways and wetlands is one of the most commonly used environmental permits. Because they really don’t want your project cluttering their desk, the USACE (and many of the states that also regulate wetlands) have implemented general permits that allow for construction to proceed without any permit paperwork at all, provided certain conditions are met. However, if you do need a permit, know that nationwide, less than 1 percent of all requests for permits are denied[3].

[1] United States. (1983). The Endangered Species Act as amended by Public Law 97-304 (the Endangered Species Act amendments of 1982). Washington: U.S. G.P.O.

[2] U.S. Forest Service. Laws and Regulations to Protect Endangered Species. https://www.fs.fed.us/wildflowers/Rare_Plants/conservation/lawsandregulations.shtml

[3] https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Frequently-Asked-Questions/