The memorandum builds on a March 22, 2012 executive order (Executive Order No. 13604) that aims to facilitate faster regulatory reviews of proposed transportation, water resources, renewable energy, electric transmission, oil and gas pipeline, and other projects. The memorandum is available here: .
The Washington State legislature recently passed a bill that incentivizes upfront environmental planning by local governments and increases SEPA predictability for developers. This legislation will help ensure infrastructure is installed in a timely manner, consistent with adopted standards, and will add clarity for both the developer and the city on the limits and requirements of recovering costs through latecomer agreements.
The two elements of this bill are important because they improve the development process by first increasing predictability of SEPA review for certain development types and second, it provides new rules for who builds and who pays for required water and sewer infrastructure.
The Environmental Protection Agency is proposing that construction companies use best management practices in lieu of numerical turbidity limits to control the volume and velocity of stormwater runoff to prevent erosion at construction sites.
In the proposed rule, to be published in the April 1 Federal Register, EPA said it will no longer require builders to monitor for turbidity in stormwater runoff and will withdraw numeric turbidity limits that it imposed in 2009.
The new effluent limits emphasizing best management practices are being proposed in response to a December 2012 agreement that EPA reached with builders and utilities to resolve a lawsuit over the stormwater rule for construction sites (Wisconsin Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 12/21/12; 06 DEN A-5, 1/9/13)).
King County Metro and a team of partners have completed a new online calculator to help measure parking demand for multifamily projects in the Seattle-Bellevue area. This “Right Size Parking” calculator aims to reduce over-building of parking supply in urban King County based on local and context-sensitive data on parking demand.
According to the Right Size Parking website: “The calculator can help analysts, planners, developers, and community members weigh factors that will affect parking use at multi-family housing sites. It will help them consider how much parking is ‘just enough’ when making economic, regulatory, and community decisions about development.”
Current one-size-fits-all parking policies have contributed to an over-allocation of urban land to parking. A “Right Size Parking” approach would make more efficient use of urban land, reduce barriers to building mixed-use multi-family residential development in urban centers, reduce housing costs, and contribute to reductions in vehicle miles traveled and greenhouse gases.
For related research on Right Size Parking approaches see King County Metro’s Right Size Parking project page.
This month's edition features discussion on the following:
Washington State Department of Ecology awarded VNFGD client Sound Transit the Environmental Excellence Award for its role in the Qwuloolt estuary restoration project.
The Environmental Excellence Award is the Department of Ecology's highest award for recognizing environmental excellence in the state of Washington. The Qwuloolt project will restore about 380 acres of unused farmland into a salt marsh, the land’s original condition, and will re-establish important salmon habitat and aid in the recovery of Puget Sound.
Six opportunities totaling over $16.25 million in federal financial assistance were released this week, soliciting proposals in the major program areas of:
Van Ness Feldman's Federal Funding Resource Center is an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. It compiles active federal funding opportunity announcements in one place for ease of review, and includes a Primer on the federal funding process. Please feel free to let us know how we can improve this service.
Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years. The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements, and managing ongoing reporting and compliance requirements.
The Department of the Interior, in partnership with the Department of Energy, will publish the Final Programmatic Environmental Impact Statement (PEIS) for solar energy development in six southwestern states—Arizona, California, Colorado, Nevada, New Mexico, and Utah.
Key elements include:
The BLM is engaged in ongoing transmission planning efforts, including through the Transmission Expansion Planning Policy Committee and the Western Electricity Coordination Council’s transmission study.
The July 27 Federal Register Notice of Availability for the Final PEIS will begin a 30-day protest period, after which Secretary Salazar may consider adopting the document through a Record of Decision. The BLM released the Draft Solar PEIS in December 2010, and in response to the over 80,000 comments received from cooperating agencies and key stakeholders, issued a Supplement to the Draft Solar PEIS in October 2011.
On July 12, 2012, Van Ness Feldman GordonDerr client Cascade Water Alliance successfully converted to a municipal corporation (a Joint Municipal Utility Services Authority) from a non-profit Watershed Partnership.
Cascade, formed originally as a non-profit watershed management partnership, realized it lacked authorities of other utilities and had many areas of confusion, such as how to handle public purchasing. As a result, Cascade led a statewide effort to create more effective ways for entities to form to provide essential public services. The process led to the Joint Municipal Utility Services Act, enacted by the Washington Legislature in 2011.
The 2011 Act establishes an improved interlocal mechanism for cooperation among local government utilities that provide water, wastewater, stormwater and/or flood control services. The Act authorizes cities, towns, counties, and special purpose districts voluntarily to form an intergovernmental municipal corporation (“Authority”) that can provide services to those local utilities and their customers.
Cascade is very proud to be the first such entity and Van Ness Feldman GordonDerr is proud to have been of assistance in this transition.
The White House has released a plan for implementing a March 22, 2012 executive order (EO 13604) that directed Federal agencies to streamline procedures for approving energy, transportation, and other infrastructure projects. The plan calls on all Federal agencies involved in approving infrastructure projects to publish by July 31 a list of their review and permitting responsibilities, as well as the time currently required to complete project review and permitting.
By December 31, 2012, agencies will be required to post targets for reducing those processing times. The plan also outlines a number of other actions the Administration intends to take, including development of performance metrics for Federal agencies; providing up-to-date online information on the status of infrastructure project reviews and approvals; and expediting the processing of projects of national or regional significance.
In April, I provided a summary of SSB 6406, dubbed the Natural Resources Reform Bill. This Washington State legislation made changes to natural resource and environmental review and permitting, and was passed by the legislature on April 10, 2012. On May 2, 2012 Governor Gregoire signed the bill into law, but added a signing statement clarifying one section and explaining her veto of two other sections.
The Bureau of Land Management (BLM), which manages approximately 264 million acres of Federal lands around the country, has issued two draft documents in support of BLM’s recent push to expedite permitting of utility-scale solar power projects in six Southwestern states.
One of the documents is a set of standard design criteria for solar projects, which BLM expects to incorporate into a programmatic Environmental Impact Statement (EIS) for the solar initiative. The design criteria, which would apply to all future solar projects covered by the programmatic EIS, address a number of project elements including siting, construction, operations and maintenance, and decommissioning.
Along with these design criteria, BLM issued a draft framework for a plan to monitor the ongoing environmental impacts of solar projects and adjust land management practices accordingly. Among other things, the framework provides for the BLM to pilot-test solar project monitoring and adaptive management techniques in one or more BLM-designated “Solar Energy Zones” (SEZs).
The Department of the Interior (DOI) has proposed to extend the duration of Endangered Species Act (ESA) “take” permits allowing for non-purposeful disturbance or harm to golden and bald eagles. If finalized, the rule would extend the term of such permits to thirty years, on the grounds that long-term authorizations are necessary for the financing of renewable energy, transmission, and similar projects. DOI’s current regulations, issued in 2009, allow energy projects to obtain an eagle take permit for a period of five years if the take is unavoidable and the project has undertaken stringent conservation measures. DOI will take comments on the proposal until July 12.
On April 12, 2012, Judge Martinez, U.S. District Court, Western District of Washington, issued a decision denying the National Wildlife Federation’s request for a preliminary injunction to halt the sale of flood insurance and floodplain map revisions in the Puget Sound stating that the NWF failed to demonstrate likely environmental harm absent the requested injunction.
[e]vidence that new flood insurance policies have been issued does not constitute proof that listed species are likely to suffer harm.” He explained: “the issuance of flood insurance policies by itself does not cause jeopardy to listed species; it is the issuance of such policies in the context of a program that is implemented in a certain way that causes jeopardy.
-Judge Richard Martinez
On the final day of the Washington State 2012 Special Session, 2ESSB 6406 was passed by the House and Senate and is on its way to the Governor’s desk. In a session light on land use issues, some have called this bill the most significant land use bill of the session.
The bill was able to survive this tough session in part because it introduced new fees and raises existing fees for certain natural resource approvals. Some specific features of the bill are listed below.
Idaho Governor C. L. “Butch” Otter signed House Bill 464, which prevents cities and counties in the state from banning oil and gas drilling operations. The bill would still allow local governments to pass “reasonable local ordinances” that regulate zoning and planning issues related to oil and gas operations, while all other activities would be regulated at the state level. Critics of the bill say it will increase fracking activity in the state, while supporters of the bill say it will make the state’s oil and gas regulations more uniform.
We are pleased to announce the launch of our Federal Funding Resource Center – www.vnf.com/funding – an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. The Federal Funding Resource Center, which is updated daily, compiles active federal funding opportunity announcements in one place for ease of review. The Federal Funding Resource Center also includes a Primer on the federal funding process.
In addition, our Government Relations team will send weekly funding updates via email every Tuesday to those who are interested in receiving them. To subscribe to our weekly funding email update, please e-mail vnf@vnf.com.
We hope you find the Federal Funding Resource Center useful and we welcome your suggestions for how it could be enhanced. Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years. The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements and managing ongoing reporting and compliance requirements. For more information on the firm’s capabilities in this area, please contact Shannon Angielski or any other member of the firm’s Federal Funding Practice at 202.298.1800.
On March 22, 2012 President Obama issued Executive Order 13604 calling for improvements to federal permitting and review processes for infrastructure projects. The memorandum recognizes the U.S. must have “fast, reliable, resilient, and environmentally sound means of moving people, goods, energy, and information” to maintain the Nation’s competitive edge. The Order creates a framework for improving the speed and efficiency of federal permit review for infrastructure projects and encourages collaboration among Federal agencies involved in a range of industry sectors, including surface transportation, aviation, ports and waterways, water resource projects, renewable energy generation, electricity transmission, broadband, pipelines.
The Order establishes a federal Steering Committee comprised of agency representatives to facilitate improvements to the permitting review processes for infrastructure, and to maintain an online “Dashboard” where permitting for projects of national or regional significance can be tracked by the public.
The Steering Committee’s must create a plan to improve federal permitting efficiencies for infrastructure projects by May 31, 2012. Individual agency plans will follow in the Summer of 2012.
Last week, the Washington State Supreme Court ruled in Stafne v. Snohomish County, reversing a lower appellate court decision that had caused consternation among local jurisdictions throughout the state.
The case clarifies the ability of a party to appeal a local jurisdiction’s decision to reject a privately-initiated proposal to amend a comprehensive plan amendment as part of the local jurisdiction’s annual “docketing” process. The Growth Management Hearings Board historically gave local jurisdictions great discretion to reject proposals from its docket and has repeatedly held that the board does not have jurisdiction to hear appeals of those decisions to not pursue privately initiated comprehensive plan proposals.
King County’s long developing program to accept cash payments for projects in need of wetland mitigation is expected to be formally approved by the U.S. Army Corps of Engineers next week. Under this program, King County takes on the obligation to build acceptable wetland mitigation and the Corps relieves the party filling the wetland and paying the fee of any other federal wetland mitigation obligation. This program can also satisfy mitigation obligations with King County and may be used to satisfy city obligations for cities within King County’s with local government approval.
We understand that the costs per credit may be very high as compared with on-site wetland mitigation, but with time savings and improved certainty, this may be a route to be considered.
In late December 2011, the Washington State Supreme Court ruled that permit-exempt wells for stockwatering are not expressly limited to 5,000 gallons per day under the state’s Groundwater Code. The Court issued its decision in Five Corners Family Farm et al. v. Department of Ecology (Easterday Ranches), described in our blog post last year, and therein confirmed the right to an unlimited quantity of water for stockwatering purposes for all existing permit-exempt wells (subject to other water law limitations such as prohibition against impairment of senior water rights).
The Easterday Ranches decision marks the end of legal debate regarding proper interpretation of the Groundwater Code as currently written, which states: “any withdrawal of public groundwaters for stock-watering purposes … is and shall be exempt from the provisions of [the requirement to obtain a permit].” RCW 90.44.050. The controversy, however, is unlikely to end. The Legislature can still revise the Groundwater Code and change the rules and limits on future permit exempt wells. State Senator Nelson has already introduced a bill into the 2012 Legislative Session to reconvene the Stockwater Working Group to review issues surrounding the use of permit-exempt wells for stockwatering purposes and develop recommendations for legislative action.
The National Wildlife Federation filed a motion in U.S. District Court on Wednesday, asking a judge to stop the U.S. government from issuing any more flood insurance policies for new development in flood-prone areas around the Puget Sound until it changes its flood plain plans to consider the impact on endangered species like salmon and orcas.
The motion for a preliminary injunction is the latest move in a decades-long fight to get the Federal Emergency Management Agency to pay more attention to endangered species, said Jan Hasselman, an attorney for Earthjustice, the environmental law firm that filed a motion in Seattle, on behalf of the National Wildlife Federation.
From my perspective, the real story is that, to date, NWF has not challenged one local jurisdiction’s development regulations as violating the Endangered Species Act,” Lawrence said. “They are trying to achieve through this lawsuit what they have been flatly unable to accomplish through local and state land use regulation development processes.
Molly Lawrence, GordonDerr Partner
On Thursday December 8, 2011, the National Wildlife Federation (NWF) initiated the most recent installment in their ongoing effort to force FEMA to change the way it operates the National Flood Insurance Program (NFIP).
In 2004, NWF filed a prior suit against FEMA, asserting that FEMA had violated the Endangered Species Act (ESA) because it had not consulted with NOAA-National Marine Fisheries Service (NMFS) regarding the impact of the NFIP on endangered species in the Puget Sound region. That lawsuit resulted in a decision ordering FEMA to consult with NMFS, which ultimately culminated in the 2008 Biological Opinion. In that 2008 Biological Opinion, NMFS concluded that FEMA’s activities implementing the National Flood Insurance Program (NFIP) in the Puget Sound region are likely to jeopardize the continued existence of certain endangered species, including chinook salmon and killer whales (orcas).
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GordonDerr is excited to announce that the firm is combining with Van Ness Feldman, a nationally and regionally recognized energy, environment, transportation, and natural resources law and public policy firm with offices in Seattle and Washington, DC. The combined firm will help a broad, national range of clients successfully navigate the next generation of real estate, land use, natural resource, energy, infrastructure, and sustainable development projects. Jay Derr, GordonDerr's Managing Partner, will lead the combined firm's Seattle office, which will operate under the name Van Ness Feldman GordonDerr for a transitional period. Van Ness Feldman is the ideal partner for growth, as well as increased service and value to GordonDerr clients. The cultures mesh well, and we anticipate a seamless transition for our clients. More information about the combination and its many benefits to our clients may be found at www.GordonDerr.com.
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A shopping center developer in Tampa, Florida received good news last week when the D.C. Circuit Court of Appeals, in Sierra Club v. Antwerp, affirmed Corps permits to allow fill of 54 acres of wetlands for the Cypress Creek Town Center project. Any applicant for an individual 404 permit should pay close attention to this case, as it provides an important interpretation of the practical alternatives test under the Clean Water Act (CWA), holdings on whether an impact is “significant” under the National Environmental Policy Act (NEPA) and guidance on the need for formal consultation under the Endangered Species Act (ESA).
Despite the current economic climate, land conservation is on the upswing throughout the country as permanent parks, farms, and nature areas are being established in lieu of development.
The Land Trust Alliance, a national organization representing more than 1,700 nonprofit land trusts across the country, just released its 2010 National Land Trust Census. According to the Census, state, local and national land trusts had conserved 47 million acres of land as of year-end 2010 – an increase of about 10 million acres since 2005. The Census also showed that, in Washington State, land trusts have protected 279,478 acres -- a 47% increase in acres conserved since 2005.
As recently noted in an article by USA Today, a number of factors contributed to these increases, including falling real estate prices, increased federal tax incentives, and the popularity of the voluntary approach taken by land trusts.
Development and conservation need not always be at odds. The Pierce County Council recently approved Orton Junction, “a new model of development that contributes to the economic strength and livability of our cities and breaks the old habit of sprawling across the countryside.”
This agreement represents a model solution that provides for services and jobs in the Sumner area while also permanently protecting hundreds of acres of farmland and creating a ‘green wall’ to curb further growth in the valley.
Pierce County Executive Pat McCarthy
GordonDerr Partner Jay Derr provided strategic advice to the City of Sumner and property owners within the proposed conservation development over the past several years and led the final negotiations with Cascade Land Conservancy that culminated in a 7 Principles Agreement for agricultural lands conservation easements, transfer of development rights and sustainable community design and construction principles. The City ends up with significant job and economic development opportunities in a new community center. The local agricultural industry ends up with over 500 acres of agricultural land protected by permanent conservation easements—all based on private funds and market rate development.
Partner Jay Derr testified before the State Legislature, sharing perspective on local land use and environmental regulations in the State of Washington. Insight was given on the Growth Management Act (GMA), the State Environmental Policy Act (SEPA), the Shoreline Management Act (SMA), the various growth management boards throughout the State, and numerous specialized development and environmental regulations.
Skanska USA is poised to become the second developer participating in the City of Seattle’s “living building” pilot program. The living building program offers incentives to develop green building projects by allowing the City to modify development standards for buildings that meet a set of sustainability criteria.
The Seattle Times is reporting that Skanska USA has identified a tenant for its proposed green building on Stone Way in the Wallingford neighborhood. The City is also reviewing a code amendment that would allow Skanska to increase the building height by 20 feet beyond what is currently allowed for the zone. The proposed height increase has raised objection by some surrounding residents, and the Wallingford Community Council has requested review by the City’s Hearing Examiner.
The Environmental Protection Agency (EPA) just released a report assessing the feasibility of incorporating climate change impacts into planning and decision-making for land preservation efforts by government agencies and nonprofit land trusts.
The report reviewed existing decision-making processes for selected land protection programs and suggested strategies for better incorporating climate change into those processes. These strategies include “new decision-support tools for advisory committees, promulgation of different land protection models, and educational outreach for elected officials.” This report underscores the need for strategic (rather than opportunistic) selection of protected parcels and land preservation tools in order to create a “portfolio of climate adaptation options.”
This conclusion is consistent with findings in a recent report prepared for the Washington State Recreation Office, which concluded that permanent land preservation tools “give the state a portfolio of conservation equity, which can be retained or liquidated and re-invested as part of an overall adaptive management approach.”
The Florida State Legislature repealed its growth management legislation last spring. While Florida’s repeal still permits local jurisdictions to implement growth management planning tools by their own choice, there are no longer state mandates (nor state oversight) in Florida to do so. Economic development and jobs were the key reasons articulated for the repeal.
Washington’s Growth Management Act was adopted largely following Florida’s model. Does this mean Washington might follow suit? At least for this next legislative session, where dollars, instead of growth policy are likely to be the major (if not sole) focus of the debate in Olympia, repeal or even significant overhaul of Washington’s Growth Management Act is not likely. However, cries for regulatory reform (including repeated requests from the Governor’s office for new ideas) could spawn suggestions that Washington consider following Florida’s lead once again—if not in this session, in the near future.
Perhaps at a minimum, those implementing the Growth Management Act in Washington might be well-advised to pay a bit more attention to the Economic Development Goal in the GMA and give local governments more ability to make (or change) land use decisions when deemed appropriate to promote economic development and job growth.
A legislative audit committee has issued a report stating that that the Puget Sound Partnership has failed to meet Legislative directives for the restoration of Puget Sound. This report will likely spur the Partnership to move more quickly toward taking concrete action, including advocating for stricter development regulations.
In 2007, the Legislature created the Puget Sound Partnership, a state agency charged with coordinating and leading the effort to restore Puget Sound by 2020. The Partnership was tasked with creating an “Action Agenda” for restoring the Sound.
Digital billboards have become a hotly debated topic in the Puget Sound area. In August, the City of Tacoma voted to revise their sign code and prohibit digital billboards, including a new type of display that sequences still images in a "slide show" style. Tacoma’s ban on digital billboards has already triggered litigation between the City and Clear Channel concerning the validity of a prior settlement deal that would have allowed a handful of digital billboards in the City.
Meanwhile, King County is currently considering a proposal to allow digital signage in many unincorporated areas of the County. The King County Council is weighing the benefits of emergency messages that can be quickly displayed on digital billboards against competing arguments surrounding driver safety and aesthetics. The Council was anticipated to vote favorably on the proposal this week, but instead deferred the issue to late October.
GordonDerr honored as Washington’s top Construction & Real Estate Law Firm in the medium-size firm category, in Super Lawyers National Business Edition 2011
The inaugural issue of Super Lawyers Business Edition features attorneys who are outstanding in their areas of business practice. Top law firms were chosen based on the number of attorneys within the firm who were listed as 2010 Super Lawyers, the quality of those attorneys, including the number of years selected as Super Lawyers, and their peer review rankings.
Congratulations GD!
GordonDerr partner, Molly Lawrence, reacts to notice that the National Wildlife Federation plans to sue the federal government, saying FEMA has failed to ensure that the national flood insurance program hasn't harmed endangered salmon — or the orca whales that feed on the fish — in Puget Sound.
GordonDerr partner Adam Gravley discusses municipal water supply and ways in which cities can get creative to protect this resource in this month’s issue of Cityvision Magazine. Also featured, groundbreaking efforts by GordonDerr clients the City of Roslyn, LOTT Alliance, and Cascade Water Alliance.
Dealing with water scarcity in an age of climate change represents yet another challenge of governing under the ever-expanding set of crazy-making conditions that define the 'new normal'.
Attorney Duncan Greene discusses Tax Increment Financing and Transfer of Development Rights in the latest issue of the Puget Sound Section of the American Planning Association's newsletter.
A recent article in the New York Times explores a legal battle over impacts of water banking in California. The dispute is over the practice in dry agrarian areas of storing water underground when flows are plentiful for withdrawal during future drier months. In central California, where water banks were first established in 1978, the practice has allegedly caused a larger hydrological problems in at least one central valley area. According to some small water systems, the large withdrawals of banked water have purportedly “reversed the area’s underground hydraulic gradient, turning a hill-shaped water table, accessible by shallow wells, into a valley.” Those water rights holders with shallower wells complain that their supply has been impacted and have filed a lawsuit.
With the September 23rd implementation “deadline” less than two months away, many of the 122 local jurisdictions participating in the National Flood Insurance Program (NFIP) are moving ahead to take some type of action to respond to the Biological Opinion issued by the NOAA-National Marine Fisheries Service to FEMA Region X. As many will recall, in that Biological Opinion, the NOAA-National Marine Fisheries Service directed FEMA to take action by September 23, 2011 to implement changes to the NFIP to protect endangered salmon and steelhead species and Orca whales. FEMA has in turn looked to local jurisdictions to change their regulations to implement the more stringent floodplain development standards set forth in the Biological Opinion (Element 3 of the Reasonable and Prudent Alternative).
But this is not new or news. What is new is that FEMA and NMFS are currently in the process of considering revisions to the Biological Opinion that are likely to address some of the many concerns leveled at the Biological Opinion since its issuance in September 2008.
Without much fanfare, Ecology last month issued its internal guidance for analyzing impacts of greenhouse gas (GHG) emissions during environmental review. This is the latest round in Ecology’s ongoing effort to identify the role of the State Environmental Policy Act (“SEPA”) in addressing GHG emissions and climate change.
The guidance document represents Ecology’s effort to stake out its policy and legal objectives broadly and outside of the context of any specific proposals, though the document has no doubt been informed by Ecology’s position in recent administrative litigation and review of specific projects. It is nominally intended to provide internal guidance for Ecology staff when Ecology acts as lead or otherwise reviews a project. As a practical matter, it will likely be used by other agencies when conducting SEPA review.
In general, Ecology views SEPA as a gap-filling mechanism to address impacts of GHG emissions until the state or federal government passes more comprehensive legislation governing GHG emissions that many complain has been too long in coming.
A recent New York Times article raises some interesting questions about how US cities might tackle increasing traffic congestion and subsequent pollution—by following the urban planning of many European cities, where trends are to make driving as irritating as possible, thereby almost forcing individuals to choose public transportation.
Interesting concept—plan a city/development around people NOT cars. Could Seattle follow the lead of our southern neighbor San Francisco? Perhaps the Burke-Gilman trail could be rebranded as Seattle’s next highway…
There are two different types of rezoning decisions: area-wide rezones and site-specific rezones. Traditionally, both types of rezones were considered to be purely legislative decisions and, like all legislative decisions, were given a high degree of deference by the courts. Since the passage of the Land Use Petition Act (LUPA) in 1995, however, site-specific rezones have been considered to be “quasi-judicial” decisions. This change called into question the level of deference that courts should give to local government decisions on site-specific rezone requests.
On June 16, 2011, the Washington Supreme Court issued a unanimous opinion that clarifies the appropriate level of deference in such cases. Phoenix Development, Inc. v. City Of Woodinville, No. 84296-5 (Wash., June 16, 2011). In Phoenix Development, the Supreme Court reversed a prior decision by Division I of the Court of Appeals, which had reversed the City of Woodinville’s denial of two rezone requests. See Phoenix Development, Inc. v. City of Woodinville, 154 Wn. App. 492, 229 P.3d 800 (2009). The Supreme Court’s opinion affirmed the long history of judicial deference to site-specific rezoning decisions, despite the fact that such decisions are now considered “quasi-judicial” decisions under LUPA. It also affirmed earlier holdings giving deference to local choices regarding urban densities under the Growth Management Act (GMA).
According to a recent Crosscut article Seattle is “the Wild West” for outdoor signage, where bigger, brighter, bolder, and brazenly illegal signs are polluting the streetscape. The article focuses on the proliferation of wall-covering vinyl signs and how the City has allowed these signs through a loophole in the sign ordinance. The article concludes that the proliferation of wall-covering signs will lead Seattle into a dystopic and generic future that will rob Seattle its urban character. But what about the important role signs play in keeping a city fresh with new ideas and new products? Assuming the City can wrangle the signage cowboys, do wall-covering signs have a place in downtown Seattle?
The Skagit Environmental Bank, a privately owned, 400-acre wetland mitigation bank near Mount Vernon, gained certification from the Washington Department of Ecology. The owner, Clear Valley Environmental Farm LLC, will re-establish and rehabilitate wetlands, enhance upland areas and permanently protect the property through a conservation easement. The bank will improve water quality, recharge groundwater , decrease erosion and increase the quality and diversity of the aquatic and riverine habitat.
Partner Brent Carson represented Clear Valley through the lengthy entitlement process, successfully obtaining all land use and environmental approvals, defending permits and negotiating agreements with the agricultural community. Partner Denice Trimble negotiated the terms of the conservation easement and key provisions of the Mitigation Banking Instrument.
Local, state and federal laws require that wetlands be avoided and impacts minimized before development can occur and wetland mitigation is allowed. Wetland mitigation banks are an important strategy for engaging the private sector and power of the marketplace to provide a ready supply of credits for mitigation of unavoidable impacts. These banks also assure that the mitigation will be effective, environmentally sound, established, well managed and sustainable.
On Thursday, May 5, the state Supreme Court issued a decision in Whatcom County Fire District No. 21 v. Whatcom County, which has implications on concurrency determinations for development proposals. “Concurrency” is captured in the twelfth goal of the growth management act and requires that an adequate level of service should be available at the time of occupancy to meet the needs of development. The case before the court addressed the question of whether certain local regulations allow providers of public services (e.g., fire districts, water and sewer utilities, and school districts) to essentially veto development proposals over concerns about their ability to serve those development proposals.
Seattle’s City Council unanimously approved a pilot program that will enliven downtown lots left vacant after the real estate bust. The City hopes to replace parking lots with public art, mobile food vending, retail kiosks, tree nurseries, community gardens, or any other similar use that enlivens the area for pedestrians.
Is this Seattle’s first step toward challenging Portland’s reign as food cart king? Most likely no: it is unlikely that the 20 lot pilot program will yield anything close to Portland’s 500 food carts. However, as the city waits for the real estate market to rebound, our own flavor of vacant lot reuse could keep downtown residents, workers, and visitors well-fed and entertained.
Interested participants must obtain a Type I Master Use Permit, which is subject to approval by the City’s Planning Director. Those given the green light will be allowed to operate their new and creative uses for three years, with a possible three-year extension.
Cottage communities are gaining popularity across the country for those wanting less space and more convenience without losing access to a yard.
Touted as anti-sprawl and as more sustainable than other forms of single family housing, Seattle-based architect Ross Chapin has compared cottages to the Mini Cooper: “smart, sensual, well-engineered and reliable.”
Successful cottage developments in urban areas bode well for Growth Management because they represent a creative and usually attractive way to add density. However, cottage housing developments built in the urban fringes, or in rural areas, could just as well be sprawl dressed in a new more stylish outfit.
Even when housing is clustered at urban-like densities it may be placed in a neighborhood without easy access to goods and services, meaning its residents will be as car-dependent as ever. A Mini Cooper can’t be considered an economy car, and though cottages are smaller, they are not necessarily highly affordable. Cottage housing ordinances often include specific design standards to make sure cottages are architecturally pleasing and high quality. The extra design costs often outweigh savings gained through smaller lots or fewer building materials.
We should expect to see the pocket neighborhood continue to be a popular choice for retiring boomers or small families looking for the coziness of an urban neighborhood. However, building urban-scale housing does not automatically make an urban environment.
The City of Issaquah recently announced a complex agreement involving a transfer of development rights (TDR) transaction that will preserve more than 140 acres of forested land in and around the City, including the entire Park Pointe area at the base of Tiger Mountain. Several years ago, a developer had proposed to build hundreds of homes at Park Pointe. The TDR agreement shifts new development away from Park Pointe and into the area around the Issaquah Highlands master-planned community.
This project, like many other TDR success stories in Washington State, was the result of fairly unique and fortuitous circumstances. Land conservation efforts always require vision and dedication, and in this case, local officials, planners, and other partners worked for years to preserve Park Pointe. However, as reported in the Issaquah Press, a key factor in the ultimate success of the project was the recession: between early 2009 and late 2010, the property’s value dropped from $18.9 million to around $6 million.
Kitsap’s population grew 8.3% over the past ten years placing it 11th from the bottom in population growth rates among Washington’s 39 counties. Perhaps the lack of population pressure contributed to Kitsap County’s decision to consider prohibiting Fully Contained Communities, as authorized by the Washington Growth Management Act.
In concept, a Fully Contained Community (FCC) is a development incorporating urban-style housing, businesses, and jobs in a defined rural area. In some cases, these communities may be constructed adjacent to (and subsequently incorporated into) an existing town or City, such as Snoqualmie Ridge, Issaquah Highlands ,and the most recent Yarrow Bay project approved in Black Diamond.
The idea is that the urban impacts of the development will be prevented from spilling into the rural surroundings. In some cases, starting from scratch with new planning and urban infrastructure may be more cost-effective than trying to retrofit the same growth within existing infill neighborhoods: it’s sometimes easier to draw a pretty picture on a clean slate.
All signs indicate that it will be several more months – if not years – before FEMA finalizes the floodplain maps for many Puget Sound jurisdictions, including King County (Green River) and Pierce County (Puyallup River).
“Acknowledging that there are ongoing flood hazard analysis studies where the ‘without levees’ approach has been used, FEMA will temporarily withhold issuing Final Determinations for those communities whose levees do not meet accreditation requirements and would clearly benefit from this new approach. This temporary delay will allow us to properly evaluated affected levees under the new procedures.”
--FEMA Administrator Craig Fugate, 3/10/11
The exact impact of this policy change on the maps in the Puget Sound region is not yet entirely clear. Initial conversations with local FEMA representatives indicate that this change will mean at least further delays in the King County and Pierce County floodplain maps, which are still in their preliminary stage. It may also apply to the pending floodplain maps for other jurisdictions (e.g., Skagit, Lewis, and Snohomish counties) where FEMA has treated as non-existent various levees that do not meet FEMA’s accreditation standards.
A recent post, somewhat tongue-in-cheek, commented on a not too surprising gap in the City of Seattle’s land use codes that did not specifically address construction of a 200-foot tall ferris wheel. While local governments probably don’t need to run out and amend their local codes to address ferris wheels specifically, another developing trend in local land use probably merits more careful consideration: small scale renewable energy installations.
Current legislation being considered by the Washington state legislature is evidence of the need to address siting of small scale renewable energy installations. House Bill 1081 would give the state Energy Facility Site Evaluation Council (EFSEC) authority to approve small-scale renewable energy installations, particularly in circumstances where local ordinances do not adequately address the use.
Jurisdictions throughout the state are in varying stages of updating their local shoreline master programs (SMPs). While several have completed the process, others, like Seattle are still relatively early in the process, and some have yet to start. Each jurisdiction’s progress is shown on the Department of Ecology’s website.
SMPs regulate development and land use within 200 feet of the ordinary high water mark of marine waters and many lakes and rivers and can extend across an entire floodplain. Thus, while their reach is relatively constrained geographically, SMPs are a primary source of land use restrictions for properties located in whole or in part within these shoreline areas. Shoreline property owners, businesses and industries along watercourses can be significantly affected by the SMP updates with such issues as increased setbacks and buffers, restrictions on bank stabilization and increased public access.
FEMA, NOAA-National Marine Fisheries (NMFS), Puget Sound Partnership and other partnering organizations held a two day conference March 1st and 2nd in Edmonds in an effort to help local governments, technical consultants and other NGOs understand options for implementing the Biological Opinion ("BiOP") issued by NMFS in September 2008 regarding FEMA's implementation of the National Flood Insurance Program.
Approximately 300 people attended the conference, during which representatives of FEMA, NMFS and several local governments rolled out the various process options for local governments to demonstrate compliance with the BiOp by the September 22, 2011 deadline. In many instances, the conference raised more, or at least as many, questions as it answered, particularly as federal officials attempt to explain how the BiOp does or does not fit with existing state and local regulations (e.g., the Shoreline Management Act and the Growth Management Act).
Local governments continue to seek the most efficient means to integrate the BiOp provisions into their regulatory scheme. At this point, it seems improbable that most local governments will meet the September 2011 deadline. But property owners and project applicants should except local jurisdictions to step up their BiOp compliance efforts immediately by requiring more habitat assessments, increased mitigation, and in some cases even denying projects that just a few months ago would have survived environmental scrutiny.
For more information regarding the processes that will be used by local governments over the next several months to implement the BiOp, or how that BiOp implementation may affect your property, feel free to contact me.
As discussed in "Smart Growth = Better Bottom Line?", recent studies demonstrate that dense, mixed-use urban development centered around public transit ("smart growth") can translate into economic gains for local businesses, citizens, and the government. An additional cost-saving tool also available to eligible cities passed last year: the "Compact, High-Density Urban Development" bill.
Although a participating city must follow a number of requirements, the SEPA cost savings and "no appeal" incentive for developers are significant.
My post on Feb 17, 2011 provided notice of the start of the process for reissuance of Nationwide Permits, which authorize limited fill of U.S. waters, including wetlands. The Seattle District office of the U.S. Army Corps of Engineers has now issued its list of proposed Revisions to Regional Conditions. The Seattle District has jurisdiction across most of Washington State. Comments on these changes must be submitted to the Seattle District office by April 8, 2011.
Following the national lead, the Seattle District is not proposing any sweeping changes to the use of Nationwide Permits in Washington State. The current acreage limitations will remain intact. However, for several permits, including NWP 29 for residential development and NWP 39 for commercial and industrial development, a new maximum 300 linear foot limitation is proposed for the loss of any intermittent or ephemeral stream bed.
The official process has begun for reissuance of Nationwide Permits, which authorize limited fill of U.S. waters, including wetlands. On February 16, 2011, the U.S. Army Corps of Engineers published in the Federal Register its proposed revisions to the 50 existing Nationwide Permits and identified two new permits it is considering; one for land based renewable energy generation facilities and another for pilot projects of similar water-based facilities. In the next few days, each Corps District office will issue its proposed list of changes to Regional Conditions, which may suspend or limit the use of these permits.
While the Corps is proposing to retain most of the current acreage limitations, for some of the most widely used Nationwide Permits, including NWP 29 for residential development and NWP 39 for commercial and industrial development, the Corps is proposing to add a new requirement that a written determination must be made by the district engineer confirming that the discharge will result in only a minimal adverse effect. Imposing this new restriction appears redundant, since, by law, Nationwide Permits must cause only minimal adverse environmental effects. District engineers have always had the discretion under current regulations to require an individual Section 404 permit instead of authorizing fill under a Nationwide Permit, but this was rarely invoked. The proposed “written determination” requirement could lead to further delays in an already time-consuming process to obtain nationwide permit authorization and may create greater uncertainty for applicants.
Comments on the federal Nationwide Permit proposal must be submitted by April 18, 2011. A 45 day comment period will follow issuance of each district’s public notice of Regional Conditions.
No matter how hard local government tries to anticipate uses in its local zoning codes, you can probably never anticipate them all. Proof that local ordinances should always leave room for director interpretations of unanticipated uses arose when Great City Attractions, of Birmingham, England approached the City about installing an 196 foot tall “capsule ferris wheel” at Seattle Center to celebrate the 50th anniversary of the Seattle World’s Fair.
Probably to no one’s surprise, the Seattle land use code did not anticipate ferris wheels in its regulations. Not wanting to be a party pooper, in a deft feat of nimble code interpretation, the City solved the problem (and permitted the celebration) with a dual interpretation: first that the ferris wheel is not a structure, but rather a piece of equipment and, as such, is NOT subject to height limitations that would otherwise apply; and second that the use is not really a ferris wheel, but rather a “participant sport and recreational use” that is permitted at Seattle Center. Without even doing the research, I can only speculate that should this matter get appealed, one won’t find any specific precedent to guide appellate decision makers.
Two recent Washington State Court of Appeals decisions underscore the risk of MTCA liability for both former and current owners and operators of contaminated properties and highlight the need to carefully assess potential MTCA liability during the purchase and sale of real property in Washington. Both the Hulbert and Grey decisions reaffirmed the broad reach of the Model Toxics Control Act (MTCA) twenty-two years after adoption of the Act by voter initiative. These cases demonstrate the courts’ fidelity to the strict liability principles embodied in the MTCA, their narrow interpretation of exceptions to liability under the Act, and the courts’ intense scrutiny of parties’ claims of allocation of liability outside the statutory scheme in both industrial and residential settings.
This month the Center for Clean Air Policy released a study Growing Wealthier: Smart Growth, Climate Change and Prosperity which argues that “smart growth” can lead to economic gains by the private sector, governments, and local citizens . “Smart growth” describes development that reduces suburban sprawl, makes efficient use of public utilities, and fosters mixed-use and dense development patterns. Advocates aim to create communities where it is possible to walk or use alternative forms of transportation to meet daily needs.
Chuck Kooshian, principal author of the CCAP study, recently discussed these findings citing that smart growth-related developments, such as light rail stations, compact residential developments, and mixed residential and retail developments, have led to localized increases in property values, compared to other areas of the same city where these investments were not made. Beyond property value increases, Growing Wealthier also points to savings felt in smart growth by way of fuel costs and infrastructure costs, as well as increases in retail sales and tax revenues and induced private investment. Each of these economic benefits were shown to result from land use planning that discouraged sprawl, and created walkable, well-connected, and mixed use urban environments.
The 2011 Legislative session is underway and, with the first day's introductions there are a few bills worth noting in the land use/environmental arena:
1. SB 5012 would change the role of the Growth Management Hearings Board, giving less deference to local governments. This is potentially a significant change in authority of the Growth Boards, since courts often interpret legislative amendments as intending to change jurisprudence coming out of the court decisions.
2. SB 5013 would make the hearing examiner review the default for all local government land use quasi-judicial decisions, removing local “politics” from those decisions. On the other hand, this approach would eliminate, or at least reduce the potential for political conflicts with the land use permit process. This may or may not be the best idea, depending on the community. It also may raise questions of how local governments would be able to pay for this.
3. HB 1088 would limit moratoria authority during comp plan or shoreline plan amendments, which would effectively prohibit what is probably the most typical time that a local government might want to use moratorium to preserve status quo.
4. HB 1054 would declare water conservation practices to be a "beneficial use" of water for purposes of relinquishment. The bill appears designed to avoid a catch 22 that many users face when considering implementing water conservation measures; better conservation practices reduce the quantity used, which, in turn, may subject the water right to partial relinquishment under the current water code. HB 1054 appears designed to eliminate this disincentive to better conservation, but is likely to face opposition.
Only time will tell whether any of these bills get enough interest (and broad constituency support) to make it through a legislative session that is otherwise totally focused on budgets and deficits. Additional bills of interest are likely to surface over the next couple of weeks of the session.
![EIA_coal_train[1].jpg](http://www.northwestlandmatters.com/EIA_coal_train%5B1%5D.jpg)
On Wednesday, Montana’s Governor Brian Schweitzer arrived in Washington to meet with Washington Governor Chris Gregoire and Cowlitz County Commissioners in an effort to support a proposal to ship Montana coal destined for Asia through Washington State. Governor Schweitzer’s trip is garnering national attention and is the latest in a legal and policy battle that has erupted over the proposal, pitting much-needed economic development in Washington against efforts to curb climate change. The dispute is notable because it examines the degree to which the State Environmental Policy Act (SEPA) requires local jurisdictions to evaluate local projects for impacts on climate change on a global scale.
FEMA continues to roll out new floodplain maps in the Puget Sound region, including recent preliminary maps in King, Snohomish, Skagit and Lewis counties. (The new Pierce County floodplain maps are even further along – ready for final issuance pending final notice in the Federal Register.) Overall, these maps show significant increases in the size of the mapped floodplains and the water depth in flood events.
“Because the recession hit at the same moment that all of this started, everybody is asleep at the switch. I’m watching for a collision course, when the first applicant goes in trying to get permit, and they find their property is in flood plain ...they can’t do much of anything.”
-Molly Lawrence, GordonDerr Partner, PSBJ, Dec. 17, 2010
At the same time, FEMA and the National Marine Fisheries Service continue to work with local jurisdictions to implement significant additional development regulations that will limit options for developing, redeveloping and even repairing some existing developments within the new expanded floodplains. Developing property in a floodplain is already challenging and will become even more difficult in 2011.
On December 1, 2010, the Washington State Department of Ecology (Ecology) issued the 2010 Construction Stormwater General Permit (CSGP). GordonDerr recently wrote about the CSGP when Ecology released the draft permit in July. The most significant change between the draft and final versions of the permit is Ecology’s removal of a specific numeric effluent limit of 280 “nephelometric turbidity units” (NTU) for sites larger than 10 acres. Ecology removed the 280 NTU limit after the Environmental Protection Agency removed that limit from its federal guidelines. To review the final permit and related documents, visit Ecology’s CSGP web page.
Earlier this month, FEMA issued new preliminary Flood Insurance Rate Maps (pFIRMs) for King County. As expected, those maps show dramatically different floodplain boundaries as compared to the existing FIRMs. This is due in part to the de-accreditation of the majority of levees along the Green River in south King County. These changes will have dramatic impacts on properties newly located in the floodplain. Specifically, property owners should expect to purchase flood insurance and will face new, substantially more restrictive development regulations when they go to develop or redevelop their properties. FEMA expect to hold public meetings in January to explain the new pFIRMs, the appeal options, and the maps’ impacts on properties newly mapped as within the flood plain.
We now know a little more about how the Department of Ecology is responding to Gregoire’s suspension of rule making. On November 30, Ecology Director Ted Sturdevant released an initial determination of affected rules. He intends to announce a final determination on Monday, December 6. Ecology is seeking comments on its initial determination through this Friday, December 3.
The affected rules run the gamut of Ecology’s authority from water rights administration, to solid waste handling and landfills, to dam safety. You should review Ecology’s lists to determine if any rule making affects you, and if so, consider a comment to Ecology explaining how proceeding with the rule—or postponing any further rule making—over 2011 will impact your operations. Ecology is accepting electronic comments at rulemaking@ecy.wa.gov.
The initial determination identifies three categories: (1) rules that Ecology will delay development on until 2012; (2) rules that will continue over 2011; and (3) rules that Ecology is waiting for further input from local government, Tribes, and/or the legislature before making a determination.
Please note that the rules slated to proceed in category (2) are in addition to the six rules that Ecology previously identified.
Jonathan Miller, in his recent Emerging Trends in Real Estate 2011 forecast prepared for the Urban Land Institute suggests we are entering a new economic period that he calls the “Era of Less”—less home ownership; smaller size housing; and the need for less “stuff” to put in less space. Tougher lending requirements; former homeowners re-entering the rental market after losing their homes to foreclosure and echo boomers entering the job and housing markets, but with more difficulty finding jobs that pay enough to support home ownership all suggest an increased demand for rental housing and an overall demand for less expensive (thereby smaller) housing in the coming years.
![Thomas%20Lake%20wetland%20complex%20(Everett,%20WA)_medium[1].jpg](http://www.northwestlandmatters.com/Thomas%2520Lake%2520wetland%2520complex%2520%28Everett%2C%2520WA%29_medium%5B1%5D.jpg)
All Nationwide Permits, a form of federal approval under Section 404 of the Federal Clean Water Act and Section 10 of the Rivers and Harbors Act that can authorize the discharge of dredged and fill material into “waters of the United States” including wetlands for specified categories of activities, are set to expire on March 18, 2012 unless they are reissued.
The Corps has begun its internal process to consider which Permits will be reissued unchanged, which will be modified or deleted, and which new categories of activities may be added for coverage. Changes to general conditions affecting every permit are also being considered. Applicants must generally apply to the local Corps office to seek coverage under a Nationwide Permit prior to any work and, in many cases, must demonstrate compliance with the Endangered Species Act. Nationwide Permits were last issued in 2007.
Now is the time for those who have received coverage under one of the 2007 Nationwide Permits to give serious consideration to entering contracts to complete all authorized work. Under existing rules, activities that have been authorized under one of these previous permits must be commenced or under contract by March 18, 2012 in order to remain valid and authorized work must be completed no later than March 18, 2013. Activities not meeting these terms will need to be reauthorized by the Corps under one of the new or reissued Nationwide Permits and will be required to comply with any revised conditions.
This is Part 3 of a series of blog entries that focuses on conservation easements and fee simple acquisitions. Part 1 provides an overview of the debate over the use of conservation easements vs. fee simple acquisitions. Part 2 takes an in-depth look at conservation easements through the lens of a recent report to the Washington Legislature, entitled “Conservation Tools.”
Conservation practitioners often assume that, by using conservation easements instead of fee simple acquisitions, they can avoid the many liabilities associated with fee simple ownership of land.
Owners of fee simple land are certainly exposed to more liability than most conservation easement holders. For example, under typical conservation easement language, the burden of cleaning up a newly-discovered meth lab (as described in a recent article by Michael Nesteroff) would fall on the landowner and not the easement holder.
Regardless of how the easement is drafted, however, conservation easement holders are never totally insulated from liability. William Silberstein and Ellis Rosenzweig have written that, when land is open to public access, “the question of whether an easement holder is liable as a landowner is determined by how much the easement holder exercises ‘control and possession’ of the land.” Similarly, there is greater potential for liability under CERCLA, MTCA, and other environmental laws for easement holders actively involved in managing the land. The need for active management often relates to a particular conservation goal, such as public recreation, invasive species management, or wetland mitigation banking. In such cases, a conservation easement might still be the appropriate choice for other reasons, but practitioners should be aware that they won’t necessarily avoid the liability associated with fee simple acquisitions.
In September, King County Superior Court launched a pilot program to explore whether mandatory mediation can help resolve disputes earlier in litigation. Under the program, approximately 1,800 randomly selected cases will receive a modified case schedule that will include two additional deadlines: a deadline for submitting a mediation plan and a deadline for completing mediation before trial. The pilot program will provide a statistical analysis to study the effectiveness and potential cost savings that mandatory early mediation could provide both litigants and the court.
This superior court program raises the question of whether a similar effort to encourage early mediation could also help resolve land use litigation at the administrative level. In the midst of significant budget cuts at the local level, the promise of potential cost savings may be appealing to local governments.
Van Ness Feldman GordonDerr is an innovative and highly responsive law firm that offers a comprehensive suite of transactional, litigation, and federal law and policy services, in the inter-related areas of energy, environment, natural resources, and infrastructure.
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