Be aware of changes to environmental requirements

Real estate professionals frequently deal with a number of environmental regulations, programs, and authorizations when purchasing, remediating, and developing property in Wisconsin. They might need to assess the property for evidence of contamination, seek closure after remediation of a spill of hazardous substances on the property, obtain permits for work in or around wetlands or navigable waterways, submit information for an environmental assessment, or undertake mitigation measures for endangered species.

Many of these programs and requirements have been in existence for a number of years without changing significantly, such that the process, cost, and timing have become predictable, familiar, or routine.

Changes to environmental requirements

In the last two years, however, there have been changes (finalized or proposed) to many of the programs that affect real estate transactions and projects, including the following:

Phase I environmental site assessments: A new ASTM International standard has been developed for Phase I environmental site assessments that could affect how they are conducted and how much they cost, as well as change what is required to comply with the EPA’s “All Appropriate Inquiries” rule. 

Closure: The Wisconsin Department of Natural Resources (WDNR) has revised the entire state NR 700 code section that deals with the investigation and remediation of environmental contamination, including site closure requirements.

Wetlands: Wisconsin recently enacted a new wetland permitting statute that made significant changes to the permitting process and mitigation requirements. There are also new general permits available for some activities and the potential to restrict the practicable alternatives analysis to the proposed site of the discharge and adjacent properties if certain criteria are met.

Navigable waterways: Wisconsin has recently amended the Chapter 30 navigable waterways statute to modify the permitting process and authorize some new general permits, as well as exemptions for land-grading activities that are authorized pursuant to other permits (e.g., county shoreland zoning ordinances).

Endangered species: The WDNR has recently performed a comprehensive review of the state Endangered and Threatened Species List, and changes include the delisting of 15 species, including the Butler’s garter snake and Blanding’s turtle.

Wisconsin Environmental Policy Act (WEPA): The WDNR is replacing its Environmental Analysis and Review Procedures regulations under NR 150 that implement the WEPA. These regulations govern the process that the WDNR must use to consider environmental information (e.g., preparation of an environmental impact statement) in the course of its decision making, which sometimes includes a decision on whether to issue a permit.

Wisconsin Petroleum Environmental Cleanup Fund Award (PECFA): Oversight of the low- and medium-priority portions of the PECFA program have been transferred from the Department of Safety and Professional Services to the WDNR.

While many of the changes to programs may make the environmental requirements less burdensome for real estate projects, real estate professionals need to be aware of the new requirements and whether there are new options available that make sense for a given transaction or project. Changes to programs can also create timing concerns since it may take some time for regulators to become familiar with the new requirements and to develop forms, guidance, and processes to incorporate the changes. In addition, real estate professionals may be unaware of changed requirements and inadvertently slow down the process by missing a step or submitting outdated forms or information.

Don’t let changes knock a project off track

How can a real estate professional ensure projects meet new requirements and stay on time and budget?

Consider these steps:

Ask for assistance: Involve experienced technical consultants and legal counsel with knowledge of Wisconsin and federal requirements early in the planning process to help identify potential permitting or regulatory issues and to discuss changes to programs. Positive working relationships with regulatory authorities are also helpful. Agency staff may be able to provide answers to specific questions or arrange meetings with permit applicants to discuss issues while continuing to process an application. The agency is also a useful source of information on potential impacts and timing of upcoming regulatory changes and how to address those uncertainties in a permit application.

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Be early: From the agency’s perspective, engaging the permitting authority early in a project’s planning process can be helpful to all (and sometimes required). Permitting authorities are often willing to meet and discuss a project even before an application is filed, which can help an applicant gather all the necessary information the agency needs and address identified agency concerns when an application is first submitted. The agency can also anticipate internal staffing needs and hopefully incorporate a project into its internal planning. Being early can also ensure an applicant has sufficient time to review draft permits and to submit appropriate comments.

Be organized: Complete, organized, and comprehensive information submitted with a permit application can provide for a more expeditious agency response. It can also help to reduce or eliminate requests for additional information from the permitting authority. Since a complete application often triggers statutory timelines by which the authority must take certain actions, this step is intended to allow the process to move more quickly.

Conclusion

There have been changes to many environmental programs that affect real estate transactions and projects, some of which may make meeting requirements less burdensome. By being organized and working with knowledgeable legal and technical consultants, real estate professionals can understand how the changes may affect a transaction or project and, hopefully, keep a project on time and on budget.

Phillip R. Bower is an attorney in the Madison office of Whyte Hirschboeck Dudek S.C., where he is a member of the Environmental Law Team. He represents clients on environmental compliance and risk management associated with business operations and transactions.

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