Environmental Permitting for Land Developers

What is Environmental Permitting?

Environmental permitting is a discipline of preparing the proper documentation for and obtaining the required permissions from local, state, and federal agencies for various land use projects. Environmental permitting aims to protect human and environmental health by defining legally binding requirements for sources of significant environmental impacts. Land use permits also help land developers mitigate the risk of fines and lawsuits.

Why are Environmental Permits Important for Land Developers?

Environmental permitting is a critical process crucial instrument for reducing an industry’s environmental impacts to sensitive or protected natural resources, and for facilitating environmental compliance. with specific requirements. Different land development project types may require various environmental federal, state, and local environmental authorization or permits that are dependent upon, including federal, state, and local, depending on the industry and property proposed for development. entirely on the chosen site. Obtaining the necessary environmental permits for a development project is critical for its success, as failure to comply can lead to project delays, fines, and penalties.

Types of Environmental Permits

NPDES Water Discharge Permits

The Clean Water Act (CWA) prohibits point source pollution, ex. via a pipe or ditch, into a protected United States water without a National Pollutant Discharge Elimination System (NPDES) permit. Examples of pollutants provided by the CWA include:

• Solid Waste

• Incinerator Residue

• Sewage

• Garbage

• Sewage Sludge

• Munitions

• Chemical Wastes

• Biological Materials

• Radioactive Materials

• Wrecked or Discarded Equipment

• Industrial, Municipal, or Agricultural Waste 

Limitations on discharge types, monitoring and reporting requirements, and other guidelines regulating impacts on people’s health or water quality from discharge are provided in the permit.

If a land developer’s project will discharge pollutants from a point source into the WOTUS, an NPDES permit is required. If a project releases pollutants into a municipal storm sewer system, land developers may need an NPDES permit depending on what is discharged.

The Environmental Protection Agency (EPA) works with state regulatory agencies to implement the NPDES program and its permitting system. While some states are authorized to issue NPDES permits, a permit will have to be obtained directly from the EPA if a land developer’s project is in an unauthorized state. There are two types of NPDES permits that land developers can get. These permit types share the same components but are used under different circumstances and involve other permit issuance processes:

Individual NPDES Permit

An NPDES individual permit is unique to and reflects one discharger’s site-specific conditions (or, in occasional cases, reflects multiple co-permittees) based on details the discharger submitted in their NDPS permit application. A land developer would need to submit a permit application at least 180 days before the expected commencement of discharge for coverage under an NPDES individual permit. NPDES-authorized states are not required to use the EPA application forms; however, any alternative form used by an NPDES-authorized state must include the federal requirements at a minimum. Coverage and approval under an individual permit may take six months or longer.

General NPDES Permit

An NPDES general permit is written to cover multiple dischargers with similar operations and types of discharges based on the permit writer’s professional knowledge of those types of activities and releases. A general permit is not issued to anyone in particular as multiple dischargers gain coverage under the permit after it is issued, consistent with the permit eligibility and authorization provisions.

NPDES general permits do not make it necessary that land developers apply for coverage. Land developers needing broad permit coverage rely on submitting a Notice of Intent (NOI) document. NOIs are notices to the permitting authority of the NDPS of a land developer’s intention for general permit coverage, including general information about the land developer and the planned discharge for which they are requesting coverage. An NOI differs from an individual permit application in that it is submitted after a general permit is issued by the permitting authority. Obtaining coverage and approval under a general permit is typically quicker than an individual permit, with coverage under a general permit often occurring immediately, depending on how the permit is written.

Non-compliance with NPDES requirements can lead to enforcement action and penalty fines. Non-compliance can also leave a land developer liable for a citizen lawsuit under the Clean Water Act, as many environmental advocacy groups can sue those who fail to comply with any of the numerous permit terms and conditions.

Clean Water Act Section 404 Permit

Section 404 of the Clean Water Act regulates the dredge and fill activities within a WOTUS, including wetlands.

Any land developer doing any development activities in a WOTUS will more than likely need a Section 404 permit unless the action is exempt from Section 404 regulation like certain farming and forestry activities. When applying for a permit, the land developer must show:

• The steps to avoid impacting a wetland, stream, and other aquatic resources the development will take

• They will minimize potential impacts

• The unavoidable impacts will be compensated for

• They are compliant with the Endangered Species Act and Section 106 of the National Historic Preservation Act

A nationwide permit (NWP) may be suitable for most discharges with minimal adverse effects. The NWP process eliminates the need for individual review. It allows certain activities to proceed with no delay as long as the general or specific conditions for the NWP are met. However, any discharges that will cause significant impact may have to be covered by an individual permit.

Land developers can obtain a Section 404 permit from a U.S. Army Corps of Engineers (USACE) district office in most states. The Corps' goal is to decide on applications within 60 days for general permits and 120 days for individual permits after they are submitted. Flagrant and egregious failure to obtain or comply with the terms or conditions of a Section 404 permit can lead to Corp-issued permit violation cases.

Hazardous Waste Permit

The Resource Conservation and Recovery Act's (RCRA) hazardous waste permitting program allows proper waste management. The EPA outlines the necessary actions for treating, storing, and disposing of hazardous wastes to prevent dangerous releases and avoid costly Superfund cleanups.

Any land developer who plans to construct a project to treat, store or dispose of hazardous wastes must obtain an RCRA permit. Most individual states assume primary responsibility for implementing hazardous waste regulations and issuing RCRA permits. For states to take the regulatory lead as the implementing agency, it must be authorized by the EPA. A land developer will need to contact a regional EPA office if the state where they plan to develop their project isn't approved to issue an RCRA permit.

There is no set timeframe for the regulatory authority to issue a final permit, but 120 days may be a reasonable estimate. Not adhering to EPA regulations and RCRA permit terms can result in expensive penalties and, in some cases, prison time.

Clean Air Act Quality Permit

The Clean Air Act (CAA) regulates air emissions from area, stationary and mobile sources. The EPA established National Ambient Air Quality Standards (NAAQS) to protect public health and environmental quality by:

• Minimizing outdoor and ambient pollutants causing smog, acid rain, haze, and other concerns

• Limiting toxic air emissions known to, or suspected of, causing serious health effects, such as cancer; and,

• Decreasing the use of chemicals that harm the stratospheric ozone.

Land developers may be subject to air permitting requirements under the CAA if the development of their project will produce sources that can impact air quality like:

• Ozone-depleting substances,

• Volatile organic compounds

• Dust from vehicle traffic

Air pollution permitting requirements are typically controlled at the state and local levels. However, the EPA can take over issuing permits if it is determined that state or local levels are not doing a satisfactory job of carrying out the CAA permitting requirements. The EPA is authorized to bring a suit or take other action necessary against those not complying with CAA permit terms or causing an imminent and substantial endangerment to public health or the environment.

Endangered Species Act Section 10 Permits

The purpose of the Endangered Species Act (ESA) is to ensure that federal agencies and departments use their authority to prevent the loss of endangered and threatened species by forbidding any citizen from actions that cause the “taking” of any listed species. Section 10 of the Act is designed to regulate a wide range of activities affecting plants and animals designated as endangered or threatened and the habitats upon which they depend.

Land developers who plan to build on a property with an endangered or threatened species may require a permit. The U.S Fish and Wildlife (USFW) Ecological Services program, located in all USFW regional offices, issues permits for native endangered and threatened species. The National Marine Fisheries Service also issues permits involving certain aquatic species. It can take 18 to 24+ months for a Section 10 permit to be issued. While there are three basic types of permits issued by the Ecological Services program, the one that is most common for land developers to obtain is the incidental take permit:

Incidental Take Permits

An incidental take permit may be desired when a land developer believes their otherwise lawful projects may cause the take of an endangered or threatened animal. The Endangered Species Act defines "take" of any threatened or endangered species as the following:

• Harass

• Harm

• Pursue

• Hunt

• Shoot

• Wound

• Kill

• Trap

• Capture

• Collect

The land developer must include a habitat conservation plan (HCP) with their application for this permit. The HCP is a legally binding agreement between the Secretary of the Interior and a permit holder that affirms that the impacts caused by the authorized incidental take are supported with proper mitigation.

Property owners and land developers are subject to civil or criminal liability like fines or imprisonment for the unauthorized taking of a listed fish or wildlife species assessed by the USFW.

State & Local Environmental Permits

Additional permits may need to be obtained by land developers specific to the state or municipality their project is being constructed in. For example, when modifying, constructing, or relocating a dam, encroachment, or water obstruction in Pennsylvania, land developers must obtain a Water Obstructions and Encroachment. Encroachments are defined as “any structure or activity that in any manner changes, expands, or diminishes, the course, current, or cross-section of any watercourse, floodway, or body of water,” which includes wetlands.

State permitting authorities and other watershed stakeholders have implemented watershed-based permitting for stormwater management. The three main types of watershed-based permits include:

• Integrated municipal permits: This type of permit bundles requirements for some point sources for a municipality or multiple municipalities within a watershed or covering multiple watersheds into a single permit.

• Multisource watershed-based permits: This permit uses one permit for many origins of the same watershed.

• Coordinated individual permits: This permit includes water quality-based effluent limits and other rules created from a holistic analysis of the watershed's current environmental state. Reissuance of these permits may be synchronized with expiration and includes effective dates.

Municipalities create zoning regulations and classifications that dictate how pieces of land can or cannot be developed and what purposes the zoned land can serve. Depending on the project being proposed for development, a zoning permit may be required.

How do Land Developers Find the Right Environmental Permits? 

Land developers find the proper environmental regulations that pertain to their projects in different ways. Performing early due diligence, including an environmental review that determines the necessary permits before purchasing or leasing a property, can help land developers avoid significant delays and preventable expenses in the future.

Environmental Consultants

Environmental consultants can determine what environmental permitting requirements apply to a land developer’s project by performing desk-based research and fieldwork. By combining scientific knowledge, relationships with local, state, and federal regulatory staff, and their extensive experience of intricacies or ordinances at all levels of government, environmental consultants help facilitate permit approvals and clearances for their clients. Consultants provide a variety of other land use development services as well. 

DIY: Do it Yourself

Land developers may handle the environmental permitting process in-house.  Some teams may consist of members with previous environmental management experience or knowledge. A property owner or developer who is more inexperienced with environmental permitting may undertake the extensive research necessary to identify and obtain required permissions for land development. Depending on the type of project proposed for development, land developers may rely on a national compliance assistance center to help better understand their permit requirements.

Environmental Permitting Software

For land developers who want to anticipate and plan for environmental influences and their necessary permitting, there are software-as-a-service (SAAS) solutions that can help. These environmental compliance platforms can generate critical issues analysis reports that reveal risks from threatened and endangered species, jurisdictional waterways and wetlands, protected areas, flood hazards, and more within minutes. In addition, these solutions identify the state and federal environmental laws that apply to the site plan and need to be accounted for if a land developer decides to build on a specific property. This information can also aid in the site selection process during development. When human resources are low, this is a great way to save time and money.