Supporting Environmental Stewardship Through Regionally Based Development Planning
Over the past century, development activities have dramatically altered the natural landscape of California. As our population has grown, the state has realized shrinkage and isolation of natural habitats, altered flows in streams and rivers, and introduced non-native plants and animals and pollution of the air, land and water. While California has enacted more environmental protection laws and regulations than many states, we also have more growth planned.
The California Council on Science and Technology recently predicted that a storm surge off the Northern California coast combined with heavy rainfall could swamp the aging levee system in the Sacramento Delta, directly affecting the 6 million Californians who live nearby and threatening the water supply for much of Southern California. This type of concern has led to such responses as Gov. Schwarzenegger's actions on greenhouse gases. However, as most developers and the consultants that assist them have experienced firsthand, a lack of data makes it difficult to plan appropriate responses. Some scientists believe that in this century, California winters will become warmer and wetter. Because most of California's rain occurs in winter, predicted changes to weather patterns will eventually lead to less snow and more rain, increasing winter runoff and decreasing summer stream flow, thus intensifying the level of statewide water demand. This will clearly affect all types of development from infrastructure to new residential building.
The weather we experience here in the northern part of the state is vastly different from what our neighbors to the south encounter; therefore, a one-size-fits-all goal makes little sense. In his presentation, "A Regional Climate Change Concept," former director of the Scripps Institute of Oceanography Charles Kennel stated that regional climate studies focusing on small-scale, localized networks, coupled with economic and social information such as infrastructure costs and risks, are the most reasonable solution to addressing regional need.
Indeed, we see the success of this approach in local development when it is approached in a manner cognizant and respectful of natural resources. The city of San Ramon's City Center project is an excellent example of combining development needs with respect for the environment. The 2.1-million-square-foot mixed-use infill project aims to capitalize on its adjacency to regional transportation facilities, major employment centers, commercial retail centers, a central park and a community center to reduce vehicle miles traveled and to promote public transit and bicycle and pedestrian modes of transportation. In concert with the city's 2020 general plan, City Center is projected to result in approximately 11,100 new residents; however, the design allowed that at least 50% of the total project landscaping would consist of drought-tolerant trees with low ozone-forming potential, thus significantly reducing its potential carbon footprint. The project is local in design, but the concept is highly generalizable … as good planning - and good environmental stewardship - often is.
June 2008 Builder Architect Edition Issue
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Green Complexes
Much has been written recently about the incorporation of green-building standards into new development and the potential for "green" laws and ordinances that affect everything from the use of internal climate controls to the types of plants used for landscaping. Although Forbes ranks California only 14th in it's Greenest States in the nation's rankings, locally, San Francisco, Oakland and Berkeley made the top 10 of a national survey by Popular Science magazine rating the country's 50 most environmentally friendly cities. Unofficially named "Green City" by the San Francisco Guardian, San Francisco's goal is to reduce their CO 2 footprint by over 50%, and as eco-friendly as that clearly may be, I have recently spoken to a number of developers who, particularly in the current economic climate, are wondering how they will be able to meet payroll while becoming green.
Let's review both the bad and good news surrounding this issue. The bad news is that environmental laws are getting more stringent and, therefore, more difficult for developers to meet while still maintaining a desirable price point. The good news is that just considering the following simple design steps will help you go a long ways towards integrating green concepts into your land- planning decisions.
The first option is through preservation of the native-plant communities on a proposed project site, wherever possible. This is most easily done by working with an arborist or biologist who can identify those natural environmental features that can be incorporated into your development footprint. These features should be chosen to enhance the visual appearance of your site and perhaps provide some amenities for the end user. Whereas the traditional approach is to design to develop or clear the entire proposed project site, then bring in ornamental vegetation and artificial water features, considering what is already in place can save developers considerable money and create an ecologically friendly, aesthetically pleasing and, yes, appropriately green-developed site.
Next, within the actual construction phase, substantial savings may be realized through the reuse of demolition materials for things such as the base of parking lots, using permeable paving materials to lessen water run-off, promoting the use of soil for natural filtration and eliminating paints, stains and finishes that contain "volatile organic compounds" that excrete the gases that create smog and pollute indoor air. Numerous products are available on the market. The addition of indigenous trees to absorb CO2 and produce oxygen and the incorporation of a "gray water" irrigation system design will also help. And, taking a tip from early California planning design, encouraging your architect to design building placement that minimizes the impact of the sun will further lessen the need for artificial air-conditioning systems.
All in all, incorporating principles of sustainability and environmental stewardship into your next project will result in a green project that you - and your accountant - can be proud of.
May 2008 Builder Architect Edition Issue
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Rapanos Update
What This Supreme Court Ruling Means to Your Development
Will your project require wetlands permits? If so, you may already have heard about Rapanos v. United States, but do you know exactly what it means for your ability to complete your project on time? This Supreme Court decision was created to narrow federal jurisdiction by clarifying what authority the federal government has regarding waters and wetlands of the U.S.
The Army Corps of Engineers (Corps) declared how they plan to interpret the Rapanos ruling in a joint guidance document they issued a short time ago. Basically, the Corps will continue to maintain jurisdiction over traditional navigable waters of the United States and wetlands adjacent to those waters. The Corps also identified some situations in which federal jurisdiction will not be asserted unless a "significant-nexus" to downstream navigable waters can be established. These situations can be grouped into three categories: (1) non- navigable tributaries that are "not relatively permanent," including ephemeral drainages and those intermittent streams that lack continuous flow (less than three months of the year); (2) wetlands adjacent to tributaries that are "not relatively permanent"; and (3) wetlands that are adjacent to but "do not directly abut a relatively permanent" non- navigable waterway.
WHAT DOES THIS ALL REALLY MEAN?
- Features that were traditionally considered jurisdictional are still jurisdictional.
- Features that have water in them at least three months of the year and connect to a jurisdictional feature are also considered jurisdictional.
- Other features won't be jurisdictional unless a "significant nexus" can be established to traditional jurisdictional waters.
OK, SO WHAT IS A SIGNIFICANT NEXUS?
A significant nexus looks at the following parameters of a feature to determine if a body of water is jurisdictional, and if these parameters are present, a significant nexus exists:
- Average rainfall, flow characteristics and watershed size;
- Distance of the tributary to the traditionally navigable water;
- Channel slope and dimensions; and
- Capacity or potential of a channel to carry pollutants, nutrients, organic carbon and sediment.
Does the significant nexus rule reduce or increase the Corps' jurisdiction?
While it is not yet known how broad the Corp's discretion is in ruling on significant nexus determinations, it appears that most ephemeral drainages will remain jurisdictional. However, "swales or erosional features" (such as gullies or small washes) or roadside ditches that lack permanent flow will no longer be jurisdictional.
SIGNIFICANT NEXUS FORM
Before submitting jurisdictional delineations, a seven-page "Jurisdictional Determination Form" developed by the Corps must be filled out to document that a feature is or is not jurisdictional. The EPA then will oversee the Corps Jurisdictional Determinations with the intent of providing consistency.
Until the Corps finalizes and releases some of its reviews, it is difficult to know with certainty if the Rapanos decision has served to effectively narrow federal jurisdiction - its original intent. I will be keeping an eye on it and suggest you do as well.
April 2008 Builder Architect Edition Issue
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Turning Green
(Greenhouse Gases)
The California Environmental Quality Act (CEQA) requires that lead agencies present the public with information regarding potential environmental impacts of a proposed project and feasible ways to avoid or reduce resulting environmental damage. The State Legislature enacted Assembly Bill (AB) 32, the Global Warming Solutions Act, in 2006 to require the reduction of greenhouse gas emissions to 1990 levels by the year 2020. Your project's environmental documents, therefore, must now address these issues; however, many developers don't yet understand how they will impact future development.
Let's start with the basics. Global warming (also known as climate change) is an alteration in the average weather of Earth measurable by wind patterns, storms, precipitation and temperature. Greenhouse gases that trap heat in the atmosphere include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. The California Attorney General's Office (Jerry Brown) and most environmental watchdog groups are demanding that all projects analyze climate change as part of the CEQA process. However, due to SB 97, these specific CEQA guidelines for determining the effects of greenhouse gas emissions will not be required or officially adopted by the State Office of Planning and Research until January 2010. Until then, there will be no published thresholds or approved methods for determining whether a project's greenhouse gas emissions are significant under CEQA; so, without the benefit of a knowledgeable CEQA consultant, you may find yourself caught between a rock and a hard place.
The simplest course of action is to hire a good environmental consultant who will include an analysis of greenhouse gases in your environmental document. Now, to understand what they will be doing on your behalf, read on.
There are various options for a CEQA threshold of significance, including a "net- zero threshold" or a "nonzero threshold." Each is discussed below.
Under a net-zero threshold, all projects subject to CEQA would have to quantify and mitigate their greenhouse gas emissions to zero, regardless of the project's size or the availability of measures to reduce emissions. Projects unable to reduce emissions to zero would require an Environmental Impact Report disclosing significant impacts and developing justification for a statement of overriding considerations to be adopted by the lead agency.
A nonzero threshold is derived from one of many options, including compliance with state or local strategies to reduce greenhouse gas emissions, the creation and use of a "green list" to promote the construction of projects that have desirable greenhouse gas emission characteristics and/or use of tiered methodology to estimate emissions and mitigate. Desirable greenhouse gas emissions can be achieved through smart land use concepts (high-density/retail mixed use, infill and transit-oriented design) and Leadership in Energy and Environmental Design.
The concept of addressing greenhouse gases is a new CEQA requirement; yet, it is somewhat obscure and, currently, poorly defined. Fortunately, there are firms that understand the process and can get your project successfully cleared under CEQA.
March 2008 Builder Architect Edition Issue
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