Clean Water Act Permits: Expensive, time-consuming, uncertain

By Lewis Perdue

There is no nationwide land parcel registry or map that specifies whether a given field or plot of land is part of the Waters of the United States (WOTUS). Because land does not have to have water on it to be part of WOTUS, the process can be confusing. (See: Trying To Make Sense Out Of Clean Water Act Regulation).

 

The only way for a property owner to know whether their land is part of WOTUS is to ask the U.S. Army Corps of Engineers for a Jurisdictional Determination (JD).

 

The first step in a JD is to apply for a permit from the Corps.

 

In many cases, before proceeding the Corps will ask for expert studies of the land costing tens of thousands of dollars. With the average cost of U.S. farmland at about $4,000 per acre, the cost of a permit can exceed the value of the land in question (Farmland sees slowest appreciation since 2010: USDA).

Key studies vary in permit costs

According to the U.S. Supreme Court’s Rapanos decision (p.2):

The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.

The Rapanos decision based its information on “The Economics of Environmental Regulation,  Sunding & Zilberman,” Natural Resources Journal.

 

Another study by the EPA and Corps of Engineers — 404 Permits Economic Analysis — offers a wildly complicated and varied estimate of costs buried beneath masses of methodology, as

sumptions and scenarios which complicate efforts to compare its results to the one cited in Rapanos.

However, the EPA/Corps study seems to indicate an average individual permit may cost $14,000 to $140,000 with an additional per cost per acre of around $13,000 and an approval time  from 4 months to more than 10 months.

 

Another estimate was made in a letter from the Iowa farm Bureau which was submitted to the EPA as a comment on the Clean Water Rule:

EPA’s own figures (adjusted for inflation) put the cost of individual section 404 permit application at $62,166, plus $16,787 per acre of impacts to “waters of the U.S.” For nationwide permits, costs are estimated at $24,004, plus $13,212 per acre of”waters of the U.S.” impacted.

The answer to “how much will it cost” has no definitive answer. The cost depends upon the circumstances, but in any event will be expensive.

Corps permits: No guarantee even if granted

While rare, the EPA can veto permits even after they have been issued by the Corps: EPA Clean Water Act Section 404(c) “Veto Authority.”

See also: Court Upholds EPA Authority to Retroactively Veto CWA § 404 Permits

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Articles in this series (so far)

• Dire consequences face every farmer & landowner who fails to grasp the vast and vague regulation of the Clean Water Act
• Clean Water Act Permits: Expensive, time-consuming, uncertain
• Ag exemptions to the CWA in law and as interpreted by Courts, EPA & Army Corps of Engineers
• How does soil become a pollutant? And a plow a “point source” of pollution?
• Supreme Court’s “Nexus” author expresses second thoughts
• Clean Water Act: A Bare-Bones Primer

Interesting and/or helpful links

• Army Corps of Engineers v. Hawkes Co.
• Hawkes argument transcript
• Rapanos v. United States,
• Rapanos Argument
• Entergy v.Riverkeeper
• Borden Ranch
• Sackett v. EPA
• The Economics of Environmental Regulation,  Sunding & Zilberman, Natural Resources Journal
• 404 Permits Economic Analysis by EPA & Corps of Engineers