Navigating Federal regulatory changes while planning for a commercial real estate project is never easy. As news unfolds around the changing definition and ruling of the Waters of the United States (WOTUS), many real estate professionals, developers, and investors are baffled by the complexity of the course of events and the implications for their projects.
Construction and development-related activities that impact waters, including wetlands, under national jurisdiction may be affected by the regulatory changes on two fronts: first, by the changes to the definition of WOTUS; and second, by the recent changes to the nationwide permitting program under Section 404 of the Clean Water Act removing the 300-linear foot impact threshold from several nationwide permits (NWPs).
Here is a summary of common questions and what we know to date.
1. How long does it take to get a permit for activities that impact WOTUS?
Because of the recent Federal regulatory changes, there was a backlog of permit applications and jurisdictional determination requests to the US Army Corps of Engineers (USACE). Although the approval process slowed down for a while, it is currently flowing again. On average, expect an additional 15 to 30 days beyond the usual 45 to 180 day timeframe to receive a permit authorization or jurisdictional determination from the USACE.
Ultimately, the lead time depends on the amount of impact on jurisdictional features, the type of permit required, and the reviewing offices’ capacity. A nationwide permit with minimal adverse impacts is issued faster than an individual permit, which is required for significant impact on jurisdictional waters.
Multiple conditions can influence how quickly permits are issued. Making sure your applications are complete and include all assessments commonly required by USACE for permit authorization can drastically reduce review time. Each USACE district office operates slightly differently, and understanding the unique processes of your district office can also reduce the permitting time frame.
It is important to understand all levels of permitting requirements wherever your project is located. State or local governments may have regulations that are more protective of wetlands than the federal government, and some states rely on federal permits to trigger state water quality certifications. State and local response times and permits are typically faster than federal response times.
2. What is the current implementation of “Waters of the United States”?
Here is a timeline of key events in the last few months.
On June 9, 2021, the Environmental Protection Agency and USACE (the agencies) announced their intent to revise the definition of “waters of the United States” (WOTUS) to better protect the United States’ vital water resources that support public health, environmental protection, agricultural activity, and economic growth.
On August 30, 2021, the agencies received an order by the U.S. District Court for the District of Arizona to vacate and remand the Navigable Waters Protection Rule, in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies halted implementation of the Navigable Waters Protection Rule (NWPR) nationwide and reverted to interpreting WOTUS consistent with the pre-2015 regulatory regime.
On November 18, 2021, the agencies announced the signing of a proposed rule to support a stable implementation of WOTUS while the agencies continue to consult with states, tribes, local governments, and a broad array of stakeholders in both the current implementation and future regulatory actions.
On December 7, 2021, the proposed rule was published in the Federal Register.
The public comment period closed on February 7, 2022. Following the signing of the proposed rule, the agencies have reverted to the implementation of the pre-2015 definition of Waters of the United States (WOTUS) until the new definition is implemented. The new definition of WOTUS closely relates to the pre-2015 definition.
The agencies will analyze feedback, revise the proposed rule, and then enact the changes, which will likely be mid-year in 2022.
3. What if I received an approved jurisdictional determination under the 2020 navigable waters protection rule?
An approved jurisdictional determination (AJD) is a confirmation letter provided by the USACE stating the presence or absence of WOTUS on a parcel. If you received an AJD in 2020, it is valid for five years. Permit decisions are governed by the regulatory definition at the time of the action, which will remain unaffected.
There are exceptions such as when an AJD gets revised because of information updates, and/or applicant requests to update the ruling to the latest regulatory regime. The applicant may want to discuss their options with USACE. AJD requests pending on or received after the date of the Arizona court’s decision will be completed consistent with the pre-2015 regulatory regime. The applicant also has a choice to proceed in reliance on a preliminary jurisdictional determination (JD) or no JD whatsoever.
4. What changes were made to the nationwide permits in 2021?
USACE reissued the existing construction and development-related nationwide permits (NWPs), modified 12 of the NWPs, and issued four new NWPs. USACE also reissued and modified the NWP general conditions and definitions. Here are some quick updates on the implications most critical to the CRE projects.
The Federal regulatory changes will impact the NWP process for commercial real estate activities. Existing NWPs including NWP 29 (residential developments); NWP 39 (commercial and institutional developments); and, NWP 51 (land-based renewable energy generation facilities), have been revised to remove the 300-linear-foot limit for losses of the stream bed. The limit for losses of WOTUS for each of these NWPs remains at half an acre. Projects with WOTUS impacts under half an acre are considered minor impacts and are permitted through the nationwide permit process. The revisions to the existing NWPs and the addition of new NWPs provide the agencies with a more streamlined process aimed at reducing the decision-making time and proving consistency across the nation.
All of the new NWPs provide appropriate processes to enable project proponents to obtain authorization to discharge dredged or fill material, to construct structures, or do work in regulated waters. The new NWPs most applicable to commercial real estate are NWP 57 (electric utility line and telecommunications activities); and NWP 58 (utility line activities for water and other substances). NWP 57 covers impacts to WOTUS associated with the construction of electric utility lines and telecommunications activities. And NWP 58 provides authorization for activities in WOTUS associated with the construction of utility lines for water and other substances.
For questions outside of the highlighted NWPs and projects with WOTUS impacts larger than half an acre, please reach out to Partner for consultation and assistance.