Real Estate & Land Use

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Water pipe in water field, discharge. Clear Water flowing from a pipe, closeup.

The United States Environmental Protection Agency (EPA) in July of this year designated two PFAS (perfluoroalkyl and polyfluoroalkyl substances) chemical types as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA, better known as the Superfund liability law), which has had a major impact in the ever-evolving environmental regulatory arena. PFAS substances are commonly referred to as “forever chemicals” because, according to the EPA, they are difficult to break down and can accumulate and persist in the human body for long periods of time. Because PFAS chemicals have been manufactured and used in a large variety of products for decades, the EPA states that they are found in water, air, fish and soil at locations around the globe. The Superfund designation is part of a larger EPA strategy to address PFAS contamination, including promulgation in April of this year of new and very strict standards for PFAS in drinking water. In addition, there has been movement by several states to regulate PFAS, including some that are imposing bans on use of PFAS chemicals in a growing range of products.

Renewable energy developers and financing parties are likely aware of the Agricultural Foreign Investment Disclosure Act (“AFIDA”), a federal law requiring disclosure of foreign investment in agricultural land. Increasingly, U.S. states are imposing AFIDA-like disclosure requirements and restrictions on foreign land ownership, including with respect to renewable energy project sites. This trend is driven by…

The Texas Attorney General recently issued Opinion KP-0467 (the “Opinion”) addressing “whether a person who negotiates a lease for property for the development of a wind power project on behalf of another, for compensation, must have a license from the Texas Real Estate Commission (“Commission”).”

Put simply, do Texas landmen need a Texas real estate license to negotiate wind leases? 

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.

Water pipe in water field, discharge. Clear Water flowing from a pipe, closeup.

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.

Law, notary, attorney background theme

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.