This practice note deals with environmental impact reviews, which real estate practitioners confront in a wide variety of real estate development projects. Such reviews may be required for new developments, redevelopments, improvements on existing properties, or renovation projects. They may also be required in large-scale projects like shopping centers or residential developments, or relatively small-scale projects like warehouses. These reviews examine the potential impact of a project on habitats, wildlife, air and water quality, and a broad array of other environmental concerns. They are most often seen in the context of review under the National Environmental Policy Act (NEPA), but are also required in the context of permitting under the Clean Water Act (CWA) and Endangered Species Act (ESA).
For detailed coverage of environmental impact review, see 1 Environmental Law Practice Guide § 1.01 et seq.
While environmental impact reviews can be time-consuming and costly, these reviews must be done carefully and thoroughly. This is particularly true for large projects and projects in sensitive areas, as a project's size and location may correspond to its impact. Permit decisions, particularly those involving projects in environmentally sensitive areas, are often subject to challenges by environmental and community groups. The stronger the record supporting the permitting decision, including the environmental impact review, the more likely such challenges will be unsuccessful.
This practice note is designed to give real estate practitioners an overview of environmental impact reviews in the context of several federal environmental statutes, specifically:
- The Clean Water Act's Section 404 permitting process
- The Endangered Species Act's incidental take permitting process
- The Migratory Bird Treaty Act (MBTA)
A number of these laws have state-level counterparts whose requirements typically parallel, but may also diverge from, their federal counterparts. Moreover, specific requirements under these laws may vary depending on the location and specific facts of the project, and may shift with regulatory and case law developments. It is therefore important to work with local counsel in the jurisdiction where the property is located and regulatory specialists when preparing environmental impact reviews.
Under most circumstances, the real estate practitioner should work with environmental counsel in preparing, and preparing for, the environmental impact reviews discussed below. Whether you will need environmental counsel depends largely on the size and scope of the potential impacts, as well as the experience and expertise of the individual practitioner. This practice note assumes limited environmental experience and expertise, and will point out where seeking environmental counsel is recommended and how the real estate practitioner can aid the environmental counsel.
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Originally published by Practical Guidance
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.