Brownfields to Green: A Proposal for Redevelopment of Brownfields Property for Natural Resource Value

• Date: 01 October 2016
• Author: Tara Disy Allden, David Goldman, Frank L. Hearne, and Bill Spinner

10-2016 NEWS & ANALYSIS 46 ELR 10855

Brownf‌ields to Green: A Proposal

for Redevelopment of Brownf‌ields

Property for Natural Resource Value

by Tara Disy Allden, David Goldman, Frank L. Hearne, and Bill Spinner

Tara Disy Allden is an Attorney/Environmental Scientist with Kimley-Horn in Columbia, South Carolina. David Goldman

is a Professional Geologist with Kimley-Horn in Jacksonville, Florida. Frank Hearne is an attorney with Mechanik Nuccio

Hearne & Wester, P.A., in Tampa, Florida. Bill Spinner is a Professional Geologist with Kimley-Horn in Tampa, Florida.

There a re many sites in the United States that are

blighted or undeveloped because of actual or per-

ceived environmental contamination. Often, these

sites are “orphans,” without existing owners having the

wherewithal to undertake responsibility for environmen-

tal remediation. Federal and state laws developed since the

1980s placed strict responsibility for remediation costs on

many types of parties associated with such sites, includ-

ing subsequent owners with no involvement in t he acts

that caused the contamination.1 Consequently, even where

such sites would otherwise be attractive for redevelopment,

the fea r of becoming responsible for expensive and time-

consuming remediation limited the willingness of buy-

ers, investors, lenders, and end-users of such property to

become involved.

As explained more fully below, recent legislation has

provided some mechanisms for incentives to under-

take control of certain types of sites and to accomplish

cleanup and redevelopment. One such approach consists of

“browneld” programs designed to facilitate remediation

of environmental issues and to encourage redevelopment

of t he properties. Federal a nd state browneld programs

provide incentives through a variety of grants, tax incen-

tives, liability protections, partial payment or reimburse-

ment of site-rehabilitation costs, and other methods. e

U.S. Environmental Protection Agency (EPA) estimates

that there are over 450,000 such sites in the country.2 is

is probably an underestimate.

1. Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA) 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405

(among other things, CERLCA imposed cleanup liability on a broad range

of parties with very limited defenses).

2. U.S. EPA, Browneld Overview and Denition, http://www.epa.gov/brown-

elds/browneld-overview-and-denition (last updated Aug. 3, 2016).

Many browneld properties include areas of altered

aquatic ecosystems, such as wetlands and streams, or may

be located in the midst of important wetland or upland

habitat areas for protected plant and animal species. Of

course, during site-rehabilitation eorts, the protection

and restoration of such areas must be taken into account

and properly permitted, including federal, state, and local

approvals. For example, the removal of contaminated sedi-

ments in stream beds or adjacent wetlands is often a part of

site rehabilitation.3

Often, brownelds incentives are provided in con-

nection with redevelopment of the browneld site into a

variety of land uses, including commercial, retail, oce,

residential, a nd other end uses. We think, however, that

when the remediation of contaminated property is under-

taken in areas where natural resource components could

exist, signicant economic and ecological potential may be

available through the development of wetland mitigation

or conservation banks.4 Such banks would provide not only

additional environmental benets, but also an alternative

protable use for the remediated sites that could potentially

bring a new type of developer to the browneld program.

e policy goals of browneld redevelopment are con-

sistent with those of mitigation banking in that under

both programs. the environmentally impacted property is

reused in an eective manner that is benecial to the envi-

ronment, the economy, and society. is Comment pro-

vides some practical thoughts and discussion as to how the

two programs ca n be used together to maximize state and

3. Federal approval for remedial excavations in jurisdictional areas in some

cases may be simplied by the application of Nationwide Permits (NWPs),

including NWP 38, which applies to certain limited remediation projects,

as described in 33 C.F.R. §330 (2008). Many states have similar simplied

approvals for site rehabilitation of a certain scope; see, e.g., F. A.

C r. 62-330.635 (2013) (larger projects will require the full range of

dredge and ll permitting procedures and approvals).

4. e idea could apply to the development of mitigation banks for oset of

impacts involving a variety of habitats. For purposes of this discussion, we

will focus on aquatic resource mitigation banks.

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