Posted on

Why Do I need a Phase 1 Environmental Site Assessment?

A Phase 1 Environmental Site Assessment (ESA) is a critical and standard practice in real estate transactions, particularly when purchasing or financing commercial properties. This assessment plays a crucial role in identifying potential environmental liabilities associated with a property, offering invaluable insights for all parties involved in the transaction. The key reasons that that a Phase 1 ESA might be needed include:

  1. Securing Financing
  2. Regulatory Compliance
  3. Shield Against Liability
  4. Risk Management

One of the primary reasons for undertaking a Phase 1 ESA is its often-mandatory requirement for securing financing from lending institutions. Banks and financial entities seek assurance that the property being invested in doesn’t harbor hidden environmental issues that could translate into financial risks down the road. By initiating a Phase 1 ESA early in the due diligence process, potential environmental concerns can be unearthed, allowing for well-informed decision-making by all involved parties.

The Phase 1 ESA serves as a crucial tool for ensuring regulatory compliance. It aids property buyers and developers in adhering to environmental regulations stipulated by agencies such as the Environmental Protection Agency (EPA). Failure to identify environmental liabilities can lead to legal and financial consequences. The assessment, by ensuring compliance with applicable environmental laws, acts as a preventive measure against these risks.

Additionally, the Phase 1 ESA acts as a protective shield against potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law. Should environmental contamination be discovered at a later stage, having conducted a Phase 1 ESA provides a potential defense against being designated as a responsible party for the contamination, provided the assessment adhered to established standards.

Beyond compliance and liability protection, the Phase 1 ESA serves as a valuable tool for risk management. It offers stakeholders a comprehensive understanding of the environmental history of a property, encompassing its past uses and any potentially hazardous activities that may have transpired. With this information, stakeholders can make well-informed decisions regarding property acquisition, development, and ongoing operations, thereby minimizing the risk of unforeseen environmental issues.

In summary, a Phase 1 Environmental Site Assessment stands as an indispensable component of due diligence in real estate transactions. It furnishes crucial information for financial institutions, buyers, and developers, facilitating informed decision-making, ensuring regulatory adherence, managing environmental risks, and safeguarding against potential liabilities associated with the property in question. Embracing this assessment early in the process is not just a best practice; it’s a strategic imperative for a robust and risk-aware approach to real estate transactions.

 

Posted on

Why Do I need a Permit to Build on Wetlands?

Requiring a permit to build on jurisdictional wetlands is a crucial aspect of environmental conservation and sustainable land use management. Wetlands play a vital role in maintaining ecological balance, providing habitat for diverse plant and animal species, improving water quality, and offering flood control. The need for a permit stems from the recognition that unregulated development in these sensitive areas can have significant and often irreversible impacts on the environment. In this blog post, we’ll delve into the why behind the need for permits and how they serve as guardians of these vital natural landscapes.

  1. Ecological Importance of Wetlands: Before we explore the intricacies of permits, it’s essential to understand why wetlands merit such stringent regulatory measures. Wetlands contribute significantly to ecological balance—they provide habitats for diverse plant and animal species, enhance water quality, and act as effective flood control mechanisms. Recognizing their irreplaceable role in the environment, various local, state, and federal regulations are in place to safeguard wetlands.
  2. Regulatory Oversight by Environmental Agencies: Agencies such as the Department of Environmental Quality (DEQ) and the Environmental Protection Agency (EPA) establish guidelines to ensure responsible usage and preservation of wetland ecosystems. Requiring a permit serves as a regulatory mechanism to evaluate proposed developments in or near jurisdictional wetlands, assessing potential environmental impacts and implementing measures to mitigate adverse effects.
  3. Comprehensive Review Process: Obtaining a permit involves a comprehensive review of the proposed project. This process considers factors such as wetland delineation, potential disturbance to habitat, changes in hydrology, and impacts on water quality. This careful evaluation helps regulatory authorities make informed decisions to balance human development needs with the protection of wetland ecosystems.
  4. Mitigation Measures and Sustainable Development: Permitting also allows for the incorporation of mitigation measures to offset any unavoidable impacts on jurisdictional wetlands. Developers may be required to implement strategies like creating new wetlands, restoring degraded ones, or establishing buffer zones to minimize the ecological consequences of the project. This approach aims to strike a balance between development and environmental conservation, ensuring that wetlands continue to provide their essential ecological functions.
  5. Preserving Biodiversity and Ecosystem Health: The requirement for a permit functions as a critical tool for sustainable land management. It acts as a safeguard against uncontrolled development that could lead to the degradation or loss of valuable wetland ecosystems. By navigating the permitting process, developers become active contributors to the broader goal of preserving biodiversity, maintaining water quality, and safeguarding the long-term health of these ecologically significant areas.

Ultimately, the permit requirement serves as a critical tool for sustainable land management. It helps prevent uncontrolled development that could lead to the degradation or loss of valuable wetland ecosystems. By obtaining a permit, developers contribute to the broader goal of preserving biodiversity, maintaining water quality, and safeguarding the long-term health of these ecologically significant areas.

 

Posted on

What is a Wetland?

A wetland is an area where water is present either on the soil surface or within the plant root zone for a portion of the year and contains vegetation adapted to wet soils. Wetlands are diverse ecosystems that bridge the gap between terrestrial and aquatic environments. They’re incredibly important because they provide habitat for a wide variety of plant and animal species, help control flooding by absorbing excess water, improve water quality by removing pollutants such as excess nutrients, and help maintain biodiversity.

Wetlands include marshes, swamps, bogs, and areas along water bodies such as bayous or lakes. Wetlands dominated by trees are called swamps and wetlands dominated by herbaceous (i.e., non-woody plants) plants are called marshes. Wetland vegetation species distribution is determined by hydrology, specifically length and depth of soil surface flooding.  A typical wetland will emerge from an adjacent water body into the shallow aquatic zone where floating or rooted plants grow to the marsh zone where herbaceous (non-woody) plants grow.  Beyond the marsh, at a slightly higher elevation, may be a shrub/scrub area with short woody and herbaceous vegetation that, grades to swamp dominated by bald cypress trees at lower elevations and longer flooding times.

(top) Schematic of idealized freshwater wetland zonation. (bottom) Actual freshwater wetland zonation in a coastal Louisiana wetland.

There are seven major types of wetlands, classified as either coastal or inland, in the United States. These wetlands exhibit considerable diversity due to variations in soil type, topography, climate, hydrology, water chemistry, vegetation, and various other factors. They support a rich biodiversity and span across diverse landscapes and range from the icy tundra to the lush tropics, and are present on every continent except Antarctica.

 

Wetland Type Dominant Vegetation Dominant Hydrology
Coastal Wetlands
 

Tidal Salt Marsh

 Herbaceous – ex: smooth cordgrass  

Tidal
Tidal Freshwater Marsh Herbaceous – ex: maiden cane Tidal
Mangroves Woody – Mangrove trees Tidal
Inland Wetlands
 

Inland Freshwater Marsh

  

Herbaceous – ex: cattails

 Rivers, streams, precipitation, watershed runoff
Northern Peatlands Herbaceous – ex: moss Precipitation
 

Southern Deepwater Swamps

 Woody – ex: bald cypress, water tupelo Rivers, streams, precipitation, watershed runoff
 

Riparian Wetlands

 Woody – shrubs and trees, ex: buttonbush and willow, Rivers, streams, precipitation, watershed runoff

 

Wetlands are important and diverse ecosystems that provide economic benefits to society.  For example, coastal mangrove wetlands can protect houses from intense wind and storm surge (Figure 2).

Figure 2. Coastal forested wetlands provide protection from wind and storm surge (Image from D. E. Marois and W.J. Mitsch (2015). Coastal protection from tsunamis and cyclones provided by mangrove wetlands – a review. International Journal of Biodiversity Science, Ecosystem Services & Management 11:1:71-83, DOI: 10.1080/21513732.2014.997292.

State and federal legislation, such as Section 404 of the Clean Water Act (CWA), exists to protect wetlands.  Wetlands determined to be ‘jurisdictional wetlands’ (as delineated using Section 404 of the CWA) have their uses regulated by agencies such as the U.S. Army Corp of Engineers, including wetlands on private property.  So, What is a jurisdictional wetland?  Sign up to receive additional information.