Federal Environmental Laws Affecting Real Estate: A Review of Clean Water Act Section 404, the Endangered Species Act, the National Environmental Policy Act, and Section 106 of the National Historic Preservation Act

2014, Past Issues, Print, Volume 46 (2014) Issue 2 (Summer)
Robert D. Anderson, Norm James, Dawn Meidinger & Greg Adams Standard practice for conducting due diligence as part of real estate transactions has long included an assessment of the potential for a site to have “recognized environmental conditions,” i.e., hazardous substances or petroleum products released to the environment. In addition to this evaluation, sound due diligence practices should include an evaluation of the potential for federal regulatory requirements to significantly affect value. This paper will look at four general areas: the Clean Water Act (“CWA”), the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”). Section 404 of the CWA generally requires that a permit be obtained from the U.S. Army Corps of Engineers to discharge dredge or fill material into “navigable…
Read More

Secured Creditors: Exempt from Liability?

2014, Past Issues, Print, Volume 46 (2014) Issue 2 (Summer)
Bert Acken Secured creditors can be exempted from liability for contamination from properties for which they hold security interests under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the Underground Storage Tank (“UST”) program under the Resource Conservation and Recovery Act (“RCRA”) and Arizona’s CERCLA-counterpart, the Water Quality Assurance Revolving Fund (“WQARF”). However, these protections are far from absolute and will be lost if applicable requirements are not followed while a loan is active, or after a lender acquires ownership or possession. Additionally, even if a lender follows the steps necessary to protect itself from cleanup liability, additional efforts should be undertaken before a loan is originated to protect a security interest to the fullest extent possible. Full Article
Read More