Wetland Permitting Hurdles to Increase in 2008

January 16, 2008
Client Alert Newsletter Forecast 2008

Changes afoot at the federal and state level may pose additional challenges in the coming year for developers and others seeking wetland permits. At the federal level, guidance material published in June 2007 by the U.S. Army Corps of Engineers ("Corps") and the U.S. Environmental Protection Agency ("EPA") will increase the time period to prepare and receive approvals for jurisdictional determinations ("JDs"). The guidance requires that applicants gather more information than previously required to support JD requests, and also obligates the Corps to include more documentation in its JD decisions. For those wetlands undergoing a "significant nexus" determination, the involvement of EPA officials in the JD review will further slow the process.

The Pennsylvania State Programmatic General Permit–3 ("PASPGP-3") now also requires that all wetlands that remain on a site following construction of a project needing a permit be deed-restricted in order for the Corps to use its most efficient and timely review process. Applicants for the PASPGP-3 will continue to face difficult choices weighing the implications of deed restricting wetlands remaining on a project site against reducing permit processing time.

With respect to state wetlands permitting, the Pennsylvania Department of Environmental Protection is developing revisions to its regulations that most probably will be published in proposed form in late 2008. One item the revised Pennsylvania regulations may address is abolishing the current permit waivers in favor of additional general permits covering those previously waived activities. The New Jersey Department of Environmental Protection has already proposed extensive modifications to its regulations for the filling of freshwater wetlands and adjacent upland buffers. The proposed revisions would impose significant and wide-ranging changes likely to make it more difficult to obtain a freshwater wetland permit. Because of the extreme interest in these regulations, Governor Corzine has postponed any adoption of these modifications until September 2008.

All of these developments indicate that in 2008, wetland permitting, on both a federal and state level, will become more costly and time consuming than ever before, with permits even more difficult to obtain.