Real Estate & Land Use

Allocating subsurface risk is always a key point of negotiation between owners and contractors in engineering, procurement, and construction (“EPC”) contracts, given its potential price and schedule impacts. Parties can utilize contractual, practical, and creative approaches to address subsurface risk, both before and after EPC contract execution.

Although colder weather makes spring construction seem far away, farmers and landowners would be wise to assess permitting and in-field environmental studies ahead of spring planting needs.

An important consideration for any future development is compliance with the U.S. Department of Agriculture (“USDA”) Food Security Act’s Swampbuster Program and wetland permitting requirements under the Clean Water Act’s Section 404 Nationwide Permit Program.

The Food Security and the Clean Water Act both contain provisions associated with wetlands in agriculture use, known as prior converted cropland (“PCC”). However, between the two programs, determining what lands fit into the PCC condition, how that determination is made, and the purpose of that determination can be difficult to understand. Here, we discuss the PCC distinction under each program and outline key considerations for landowners and developers.

Virginia developers take note: changes to the Virginia stormwater construction permitting program have been made over the last few years, and more changes are expected in upcoming months. While navigating those changes, Virginia developers will also want to be aware of all the requirements when applying for stormwater construction permits in Virginia to expedite the process and ensure a timely-issued permit.

The renewable energy industry is growing rapidly but it faces several challenges, including ever-increasing competition amongst developers for rights to the same land. This creates a race between developers to encumber project land.

Negotiating and executing a lease is normally more time-consuming than recording it, but recording the lease agreement (or other applicable real estate instrument) is not a step that should be overlooked or delayed. A lease is effectively meaningless to anyone not a party to it until it has been recorded in the public records of the county in which the leased property is located. Once the lease, or evidence of the lease, has been recorded, everyone not a party to it is put on notice and any agreement encumbering the leased land after that date is typically subordinate to the lease.

When President Jimmy Carter installed rooftop solar panels on the White House, public support for adoption of renewable energy was at a then all-time high and many imagined the possibility of rooftop solar on their own homes and in their own communities. Yet, barriers such as the high up-front installation cost of panels, and of

After nearly a decade, the Texas Attorney General and the New Mexico Attorney General announced in October 2022 that Texas, New Mexico, and Colorado had reached an agreement over the distribution of water from the Rio Grande; however, the details of the agreement, which is in the form of a proposed Consent Decree, were not known until January 23, 2023. Though the Department of Justice opposes it, the proposed Consent Decree will likely be approved by the appointed Special Master and ultimately forwarded to the U.S. Supreme Court for approval.

On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.

The Bureau of Land Management (“BLM”) recently circulated a Proposed Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation (“2022 Proposal”). This iteration, as BLM acknowledges, is a revamp of its fraught 2016 attempt to issue a similar rule ostensibly aimed at reducing natural gas waste on federal and Indian leases (“2016 Rule”). The 2016 Rule was ultimately struck down two years ago as unlawful. To the Wyoming federal court, the 2016 Rule sought to regulate air emissions—a role reserved for the Environmental Protection Agency (“EPA”) and the states—rather than prevent the waste of resources through flaring and other means. Undeterred, the Biden Administration believes it has learned from and theoretically fixed the flaws in the 2016 Rule through the 2022 Proposal. The 2022 Proposal claims to focus on reducing operator costs and generating taxpayer revenue. This is a shift from the 2016 Rule, which relied on the benefits from reduced carbon emissions to justify its issuance. Nevertheless, the question to many stakeholders remains: does the 2022 Proposal still exceed BLM’s authority, or has the agency done enough to win a future legal challenge?