Philosophy – Clean Water Act permitting

Historic Federal Permitting

Throughout the 1970s and ’80s, securing section 404 wetland permits was not necessarily easy, but was manageable for most permit applicants. Landowners and project managers whose activities affected plants or animals listed by the Endangered Species Act (ESA) normally looked for a federal permit connection, often through section 404, to make use of the faster “section 7 consultation” rather than the longer and more expensive section 10(a) Habitat Conservation Plan process required for those without a “federal connection.” During that time the wetland permit process was generally cumbersome, but not overbearing.

In more recent years, however, securing any federal land use permit has increased in complexity and time required. Simple “Nationwide Permits” were once available for wetland impacts up to 10 acres. That limit is now one-half acre! Mitigation that was once discretionary for impacts below one acre are now mandatory—with no minimum—for any section 404 permit. Any potential impact to endangered species now often requires months of expensive field-testing, followed by more months of review by federal agencies. Section 404 permit approval requires demonstration of maximum avoidance of jurisdictional features. Federal conditions of permit approval usually require expensive mitigation and ongoing monitoring. Once an applicant is part of the federal permitting process, it is extraordinarily difficult to withdraw the application in favor of designed wetland avoidance.

A New Approach: Avoiding Federal & State Permit Requirements

Demar Hooper is prepared and experienced should a client require a permit, and he is equipped to negotiate for reasonable permit conditions. He has adapted his philosophy, however, to assist potential permit applicants to consider simply avoiding federal permitting when circumstances allow. Whether the proposed action is agricultural, mining or urban development, he assists in determining the cost of avoiding federally regulated resources and comparing that expense to the cost and delay in securing a permit. Such an approach allows the client to make an informed business decision. This assistance can be critical during property transaction due diligence, but is also helpful for existing property owners struggling to identify options for productive land use. Advice may include methods for spanning drainages, allocating crop types, designing projects to “dredge” rather than fill, and developing creative approaches to address topographic and hydrological site constraints. The approach is particularly practical for agricultural and some mining projects that have no local permitting requirement.