Greenhouse Gas Issue Heating Up
Jason M. Brandman
The following is a draft of a letter the state is sending to President Obama's administration with guidance on greenhouse gas policies and regulations. I thought you should know what your state is recommending on this issue, since the eventual outcome will likely affect everyone in California and the nation:
"California has a long history of environmental leadership, developing innovative policies that save money, add jobs and expand our economy. California's landmark energy efficiency standards have saved consumers more than $56 billion over the last 30 years, and are expected to save another $23 billion over the next five years. California's first-in-the-nation policies are cited for attracting 57 percent of the nation's clean-tech venture capital - $3.3 billion dollars in 2008. The following recommendations are based on California's experience combating climate change using market-based measures and direct regulations, and by encouraging voluntary action at the local, state and regional level.
Effective and Enforceable Targets: The federal program must include mandatory approaches to achieve the greenhouse gas (GHG) emission reductions needed to prevent dangerous interference with the climate system. Regular reviews of progress and mechanisms to adjust the emission reduction targets are essential to ensure our nation is making a substantial contribution to the global efforts to combat climate change. The Fourth Assessment of the Intergovernmental Panel on Climate Change (IPCC) states that in order to avoid the worst consequences of climate change, the world will have to reduce GHG emissions from 2000 levels by between 50%-85% by 2050. The California Global Warming Solutions Act established a comprehensive program to reduce California's GHG emissions to 1990 levels by 2020. Consistent with the IPPC science-based recommendation to stabilize atmospheric GHG concentrations at a level that prevents catastrophic consequences, Governor Schwarzenegger set a goal of achieving an 80% reduction of GHGs below 1990 levels by 2050.
Mandatory Reporting: The federal mandatory reporting program should employ The Climate Registry as the central repository or clearinghouse for reporting and tracking of GHG emissions. California has joined 39 other states, 12 Canadian provinces and territories, six states in Mexico and four Native Sovereign Nations to form the largest North American GHG registry. The Climate Registry establishes consistent, transparent standards throughout North America for businesses and governments to calculate, verify and publicly report their GHG emissions. The registry utilizes best practices in GHG emissions reporting, establishes a common data infrastructure for voluntary and mandatory reporting and emission reduction programs, and minimizes the burden on both the government members of the registry and the reporters to the registry.
Preserve State Authority: The federal program should recognize the benefits of state programs and expressly preserve the authority of states and localities to implement measures that reduce GHG emissions. Given the nature of the threat posed by climate change, a collaborative effort involving all levels of government is necessary. The United States is governed through the shared and differentiated responsibility among local, state and federal governments. States have demonstrated the ability to respond more quickly than the federal government to new scientific and technological developments and to address issues in ways that respond to local needs. Consequently, states have long provided innovative public health and environmental protection policy models for the federal government. Given the diversity among states in resources and capability to respond to the many challenges of combating climate change, allowing for state action beyond federal action can provide greater environmental and other co-benefits, accelerate clean-tech development and deployment, and lower the overall costs at both the state and federal level.
A Mix of Measures: The federal program should consist of both a cap-and-trade program and complementary measures to stimulate the economy and promote efficient use of energy. States have implemented complementary measures to address climate change, many of which will provide additional environmental and economic benefits if adopted at the national level. Complementary measures implemented by states thus far include policies that promote renewable power generation and recycling, increase energy efficiency and reduce GHG emissions from cars, fuels, buildings, and appliances. Complementary measures at the federal level should serve as the minimum requirements for the nation as a whole and allow states to pursue more stringent requirements within their jurisdiction.
Cap-and-Trade Program: The federal cap-and-trade program should provide a clear path for states that choose to transition into the federal cap-and-trade program. California supports a strong federal cap-and-trade program. Such a program is essential to ensuring that GHG emissions are reduced nationwide, while allowing industries flexibility to discover innovative and cost-effective means to reduce emissions. Many states have already joined together in regional partnerships to create cap-and-trade programs. These programs are being designed with the input of stakeholders and experts from around the world, and are a model for a federal cap-and-trade program. California believes that the federal program must provide for an exchange of previously purchased state allowances and offset credits, the use of the federal allowance currency for purposes of state programs, preservation of funded state programs, and a mechanism which would allow for state retirement of federal allowances. To ensure a long-lasting strong federal program, states must retain their authority to operate cap-and-trade programs.
Cost Containment: The federal cap-and-trade program should contain costs through a liquid market, banking, and linkage to other carbon markets and carbon offsets. The integrity of offsets and linked programs must be ensured through rigorous standards. The primary mechanism for cost containment in an emissions trading program is a large, open and efficient trading system. Other mechanisms to contain costs including unlimited banking of allowances, a rigorous standards-based offset program, and linkage to other well-managed carbon markets. Cost containment mechanisms such as safety valves that delay real emission reductions jeopardize the long term integrity of the cap and threaten linkage with other programs.
Strategic Allocations: The federal program should ensure that the majority of allowances are auctioned. Free distribution based solely on historical emissions only serves to reward the biggest polluters at the expense of consumers and penalize early leadership. Implementation of a cap-and-trade program nationally with tradable allowances would create allowances worth between $50 Billion to $300 Billion annually. This allowance value ultimately belongs to society and the use of the allowance value should advance societal goals. As indicated by economic studies as well as the recent experience in the European Union's Emissions Trading System, freely allocating allowances can lead to large windfall profits by providing emitters with allowances whose value greatly exceeds their compliance costs.
Transportation Policies: The federal government should adopt a national Low Carbon Fuel Standard (LCFS) and a national GHG standard for vehicles, and should ensure that transportation policies promote efficient mobility. Any successful climate program must aggressively address the transportation sector which accounts for approximately 30% of emissions nationally. Addressing transportation emissions requires focusing on vehicles, fuels, and transportation demand. Governor Schwarzenegger's LCFS requires a reduction in the average GHG-intensity of transportation fuel. Adopting the LCFS nationally will create a market for the most advanced and efficient low-GHG fuels. Similarly, California's vehicle GHG standards, is a model for a national GHG standard that drives innovation toward cleaner cars that save consumers money. And finally, states and local governments should have incentives to make land use decisions which provide a balance between jobs and housing, increase public transit, and provide for more bikeable and walkable communities, and federal transportation funding should be at least partially tied to decreasing vehicle miles traveled."
If you have a question about the issues mentioned in this column - or any other environmental issue you would like to see discussed - please drop me a line at jbrandman@brandman.com.
March 2009 Builder Architect Edition Issue
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As Our (Fiscal) World Turns
by Jason M. Brandman
When the Governor announced his economic stimulus Plan in December, he counted on CEQA exemptions for $800 million worth of highway projects as an indispensable feature of the plan. The administration argued that the CEQA exemptions were "needed" because of the economic crisis we're in. In the economic stimulus plan passed by the Legislature, the Governor's CEQA exemption provisions were replaced by a CEQA-like streamlined environmental review process. The Governor vetoed the legislative plan because of its failure to accord a full CEQA exemption to the highway projects he proposed. Many environmental groups are arguing that such a proposal ends up reinforcing a bad policy: when there's a crisis, suspend CEQA. Similarly, the Governor's insisted on CEQA exemptions for certain designated projects during the 2006 infrastructure crisis.
No one can quarrel with the existence of our economic crisis. The economic benefit of these CEQA exemptions in stemming the downward spiral of the state's economy is, however, not as clear cut. The January 21 letter noted that the economic benefits of the $37+ billion bond package of 2006 are just now catching their stride, contributing in their own way to stimulating the economy. According to the Treasurer's Office, there are $18 billion in capital outlay projects at a standstill for lack of the state's cash flow, which is caused by the state's budget crisis - fix the budget crisis and $18 billion in projects in the pipeline become "shovel ready." Moreover, the Governor recently reported to President Obama the existence of $44 billion in projects, many of which are not subject to CEQA, that are ready to start construction or place orders as soon as the President's national economic recovery package is enacted by the Congress. Finally, it should be noted that CEQA is the only process at this time for determining appropriate measures to mitigate the impact of these transportation projects on climate change and global warming.
While much hope is being placed on the various economic stimulus plans, the state's cash flow is like a "canary in the coal mine" relative to the state's budget. In December, the State Treasurer, the State Controller, and the Governor's Director of Finance were all in agreement: the state's cash flow is upside-down. Unable to pay the bills, the Treasurer, Controller and Director of Finance, acting as the Pooled Money Investment Board (PMIB), voted to suspend all disbursements for bond-funded projects until the state's cash flow shows signs of recovery. The Director of Finance, in turn, directed all state agencies responsible for bond-funded projects to issue stop-work orders to their contractors and vendors. Sometimes referred to as the "AB 55 Freeze," these stop-work orders have crippled projects throughout the state, including the work of environmental professionals particularly on habitat and ecological restoration projects.
As a bit of history, AB 55 created a financial mechanism employed by the state for borrowing money from the state's pool of revenue sources in order to pay for state bond-funded projects prior to the sale of such bonds. The state's current cash flow is insufficient to meet essential state financial obligations of its various revenue sources and also make loans to pay for bond-funded projects. At the same time, the state's deteriorating credit rating creates unfavorable market conditions for the issuance of state bonds to repay the AB 55 loans in a timely manner. In the meantime, environmentalists are concerned that the curtailment of such projects may lead to irreversible biological and ecological damage.
Unfortunately, this sad saga is far from over, despite rumblings in Sacramento and Washington about imminent bail-out monies. You will have to stay tuned for more updates as our fiscal world continues to churn like an all-too-real soap opera. If you have a question about the issues mentioned in this column - or any other environmental issue you would like to see discussed - please drop me a line at jbrandman@brandman.com.
March 2009 Builder Architect Edition Issue
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Need to Defer Fees? Check Out AB 2604!
Finally, some good news for residential developers! Just before the budget-driven moratorium on bills in August, the governor signed AB 2604, which allows local agencies to defer the collection of development impact fees to the close of escrow. Since most developer fees are collected when building permits are pulled, this bill will give home builders at least temporary relief from new construction fees.
California Government Code § 66007 prohibits local agencies from collecting developer fees until final inspection or upon issuance of a certificate of occupancy. However, do note that fees may be collected before building permits are issued if the agency determines they are for improvements for which an account has already been established, funds appropriated and when a proposed construction schedule has been adopted - these requirements can be met by adoption of a capital facilities plan. Historically, the majority of jurisdictions routinely make the statutory determination necessary to collect fees when building permits are pulled. However, dozens of cities and counties have postponed collection of developer fees until the final inspection or certificate of occupancy to help home builders with cash flow problems. The Building Industry Association has been a particularly visible and outspoken advocate of this concept.
AB 2604 amends Government Code § 66007 as of January 1, 2009, to "allow" local agencies to collect impact fees at the close of escrow. The law allows the local agency to require the builder to execute a contract to pay the fee, recorded against the property and enforceable against successors. One additional caveat is that this new trigger point does not apply to school impact fees.
The ability to defer fees from certificate of occupancy to close of escrow would ordinarily not make much of a difference to builders because an escrow generally closes immediately after the issuance of an occupancy certificate. However, current cancellation rates are running as high as 60% in some markets, leaving builders with huge unsold inventories and carrying costs that include impact fees of $100,000 or more in some jurisdictions.
Despite all the bad economic news, AB 2604 at least gives builders some limited relief from fee payments. I believe that it is in your best interest to check this option with your jurisdictions if you are facing upcoming fee payments.
November 2008 Builder Architect Edition Issue
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SB 375: How Your Legislators Are Spending Their Summer Vacation
July is usually a quiet month in the State Capitol, and this past July was no exception, despite the fact that the state faces another dramatic budget deficit - $16 billion against a general fund budget of $101 billion. State paycheck cuts to minimum wage and layoffs are threatened, public safety nets are unraveling and vendors to state agencies aren't getting paid. Is it only a coincidence that most of the state was also on fire in July?
The Legislative summer recess, especially in the second year of the two-year session, is when a lot of important work behind the scenes produces some important legislation, the most important of which, this year, appears to be SB 375, a bill that could change land-use patterns throughout the state by requiring mitigation of global warming impacts through CEQA.
SB 375 has been characterized by some as the most important land-use bill since the Coastal Act of 1976. The author, Senator Steinberg, has boasted that it is a comprehensive measure intended to be the land-use platform for AB 32 global warming planning at the regional level. Although the recently negotiated agreement on SB 375 is not in print yet, the major themes include:
- Establishing regional greenhouse gas (GHG) targets through the regional transportation planning process (the bill applies only to the 17 largest metropolitan planning agency jurisdictions);
- Guiding local land use decisions through a "sustainable communities strategy" (SCS);
- Amendments to CEQA to encourage infill development and projects consistent with the SCS;
- Transportation funding preferences for projects consistent with the SCS; and
- Realigning the Regional Housing Needs Assessment process with the Regional Transportation Planning process.
The bill includes various "benefits" that are intended to encourage or entice development projects that have a beneficial effect on global warming. Among other things, the CEQA benefits are expected to:
- Eliminate the need for GHG emissions analysis and growth-inducing or cumulative impacts for cars and light trucks associated with a residential or mixed-use residential project that is consistent with a CARB-certified SCS;
- Alleviate the need for environmental documents to analyze reduced density as an alternative to address the effects of cars and light-duty trucks generated by the project on global warming or the regional transportation network or to address growth-inducing impacts; and
- Entitle qualified "transit priority projects" (as defined) to either a CEQA exemption or streamlined analysis.
Clearly, this is an important bill that real estate professionals, developers, planners, architects and builders need to be watching as it continues its march through Sacramento and (quite possibly) into your region soon.
October 2008 Builder Architect Edition Issue
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Water Water (News) Everywhere!
You probably need a break from all the news on greenhouse gas emissions and global climate change, so this month, let's talk about water.
You've likely heard the discussions about the high percentage of residential water use generally assigned to outdoor watering. Happily, as with recycling and energy reductions, most California residents have successfully done their part thus far to conserve to the degree possible without the need for legal mandates. Developers have followed suit with the institution of drought-tolerant landscaping (discussed in this column several months back). Still, much of the state is primarily desert, so regardless of the level of various forms of participation, water will always be an issue.
As you may suspect, the current water supply information is not promising in the short term. Gov. Schwarzenegger has been working on a comprehensive water supply program supported by water bonds from Propositions 1E and 84, passed by the voters in 2006.
In the meantime, he has issued an executive order requiring a 20% reduction in per capita consumption by 2020. His order, dated June 12, declared localized states of emergency for nine Central California counties. It also directed the state's Department of Water Resources to expedite water transfers, work with local water districts, coordinate with other state and federal agencies, and expedite existing grant programs to help local water district and agencies conserve water.
There is one bit of good news regarding water quality and stormwater runoff. On July 2, in The City of Arcadia v. State Water Resources Control Board, the Superior Court determined that the Los Angeles Regional Water Quality Control Board had to consider balancing a variety of factors, including economic impacts and the need for housing, when implementing the Basin Plan and issuing new rules for the L.A. Basin. The Superior Court also noted that local factors, such as the extreme variability in pollutant types and levels, must be considered when the board issues new rules or implements existing regulations.
The Superior Court invalidated the most recent (2004) approval of the L.A. Basin Plan and its long list of beneficial uses for each river and tributary in the basin. Instead, they directed the Los Angeles Regional Water Quality Control Board to consider economic factors when deciding how to reason- ably achieve water quality objectives and standards.
While this ruling may have repercussions throughout the state (i.e., other boards "should" consider the court's ruling), the jury is still out (only a small pun intended) as to what degree other water boards will actually follow the ruling.
September 2008 Builder Architect Edition Issue
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CEQA Update
Even during "down" building times, it is still important to keep abreast of the various changes to the California Environmental Quality Act (CEQA). Here are some recent appeals, court rulings and other actions that may be of interest to you, especially if you plan on developing property in the near future.
First, the Legislature has rejected SB 1165, which, among other things, would have placed a five-year shelf life on Environmental Impact Reports (EIRs). This would have meant an EIR prepared for a property that sat partially developed for five years would require an entirely new document - particularly difficult for those with a programmatic EIR in place, as these are intended to last for the lifetime of a project, providing tiered analysis for various phases of development.
AB 32, the "Global Warming Solutions Act of 2006," has brought greenhouse gas emissions and global climate change center stage in the debate on land use and environmental policy in California. While you may still debate the phenomenon, environmental documents will now have to examine these issues to withstand legal scrutiny. The extent of the analysis, however, varies. Most agencies are finding a general approach sufficient if it thoroughly examines the issue as it relates to the proposed development.
Two water bills, SB 221 and SB 610, require a 20-year guaranteed water supply for projects with 500 or more units (or for nonresidential projects equivalent to that amount). Such projects will require the preparation of a complete water supply assessment (WSA). The courts have determined that a WSA cannot be challenged independently; however, their conclusions can still be challenged when they are included as part of an EIR or mitigated negative declaration. This determination is especially important because so many urban water management plans depend upon water from the California Delta, and curtailment of that supply by a federal judge has called into question a heretofore guaranteed long-term source of statewide water.
A recent Southern California court case that dealt with cultural resources issues should also be noted. The development, located in the city of Hollywood, did not obtain adequate documentation support. The court, in its decision, emphasized that a lead agency must have adequate support for its decisions, even when those decisions seem minor, especially when the project involves an historical building (Committee to Save Hollywoodland Specific Plan v. City of Los Angeles).
Finally, there is some good CEQA news for beleaguered developers. The court recently determined that project entitlements and approvals that lapse when a project is put on hold will not automatically require full CEQA review when the project is renewed at a later date, as long as there is no significant new information or new impacts that were not evaluated at the time of approval. For those developers waiting for a perk in the market to begin building again, this will be a real time and money saver.
August 2008 Builder Architect Edition Issue
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Addressing California's Water Crisis With Sustainable Development
Last month, we talked about greenhouse gas emissions and how focusing on sustainability is both an effective and efficient approach to local development. This month, I'd like to return to the sustainability concept and focus on water and its use in development.
California's water supply is finite, but its population is growing. Forecasters believe that the state, which has 38 million residents today, will have 48 million by 2030. Combine this with increased demand for water from growing states such as Nevada and Arizona, and the situation appears grim at best.
To help alleviate some of the pressure, last August Gov. Schwarzenegger called for a statewide 20% "across-the-board" water-conservation effort. Further, under terms of a federal court decision, the Department of Water Resources is cutting its initial allocation for water deliveries in 2008. The initial allocation was already expected to be lower because of dry conditions in the Sacramento and San Joaquin regions where the rivers feed water from the Sierra Mountain Range to the Sacramento-San Joaquin Bay-Delta and to state water project pumps. The question is, will there be enough?
In a recent letter to the governor, the Southern California Leadership Council (which includes former Governors Deukmejian, Wilson and Davis) identified "the combinations of the extended drought in the Colorado River Basin, the failure to implement timely and effective improvements in California's water-supply infrastructure and the recent court interference in the Bay-Delta operations" as the primary reasons for the current water crisis. However, the letter indicated, "Environmentally benign infrastructure improvements" can help improve the storage, capture and conveyance of water and further emphasized that "California business leaders are united in their shared perspective that this may be a once-in-a-generation opportunity to resolve differences among stakeholders in the best solution to the Bay-Delta."
This is certainly something to think about for those of us involved in Northern California development. No one really knows how much water exists to support development. While the state's Department of Water Resources reliability report - which gives cities an idea of how much water they can expect to receive through the State Water Project in wet, dry and "average" years - is helpful, there are no uniform standards in place for estimating water supplies.
Thirty-nine percent of residential water use in California occurs outdoors, mainly when homeowners water their lawns. Recognizing that, many developers secure "additional" water for growth by cutting yard sizes, landscaping with drought-tolerant plants and installing parallel pipe systems to deliver recycled water for outdoor use. It is increasingly clear that conservation and reuse initiatives should be strongly emphasized in development.
July 2008 Builder Architect Edition Issue
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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