Northwest Land Matters

BLM Releases Draft Impact Management Plans and Design Criteria for Solar Projects

Duncan Greene — Tue, 01 May 2012 10:53:36 -0800

Posted by Duncan Greene

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).

Domestic Greenhouse Gas Emissions Increased in 2010

Duncan Greene — Tue, 24 Apr 2012 11:35:43 -0800

Posted by Duncan Greene

The EPA has published the final version of its latest Inventory of U.S. Greenhouse Gas Emissions and Sinks, covering trends in domestic greenhouse gas (GHG) emissions and sequestration between 1990 and 2010. Despite trends to “Go Green,” the report found that U.S. emissions totaled 6,822 million metric tons CO2-equivalent in 2010, a 3.2% increase relative to 2009 (when emissions fell due to the recession). Noting that all major sectors of the U.S. economy increased energy consumption in 2010, the report attributed the increase primarily to the resumption of economic growth and warmer summer temperatures.

DOI Proposes Extended ESA Take Permits to Accommodate Energy Projects

Katie F. Cote, AICP — Tue, 24 Apr 2012 11:19:15 -0800

Posted by Katie F. Cote, AICP

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.

Federal District Court Denies Request for Preliminary Injunction To Halt The Sale Of Flood Insurance and Floodplain Map Revisions In The Puget Sound

Molly Lawrence — Wed, 18 Apr 2012 16:18:30 -0800

Posted by Molly Lawrence

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

I. Background

In 2003, the National Wildlife Federation (“NWF”) filed suit against FEMA alleging that FEMA had failed to consult with NOAA-Fisheries regarding the impact of the National Flood Insurance Program (“NFIP”) on threatened Puget Sound Chinook Salmon in the Puget Sound region. In 2004, Judge Zilly, U.S. District Court, Western District of Washington, agreed, concluding that FEMA had violated Section 7(a)(2) of the ESA by failing to consult with NOAA-Fisheries regarding certain elements of the NFIP. Thereafter, following significant, but unsuccessful, negotiations between FEMA and NOAA-Fisheries, NOAA-Fisheries issued a Biological Opinion concluding that FEMA’s implementation of the NFIP in the Puget Sound region likely jeopardized the continued existence of several ESA listed species and adversely modifies their critical habitat (“NFIP BiOp”). As part of its jeopardy finding, NOAA-Fisheries set forth a seven element “reasonable and prudent alternative” (“RPA”) outlining changes that FEMA could make to its implementation of the NFIP to reduce the adverse impacts on the listed species.

II. Current Suit

In December 2011, NWF once again filed suit against FEMA, this time asserting that FEMA had violated the ESA because it had failed either to fully implement the RPA from the NFIP BiOp, or to take other alternative actions to avoid “jeopardy” or “take” of ESA listed species. On December 21, 2012, NWF requested that the Court issue a preliminary injunction stopping FEMA from selling flood insurance for new development within approximately 75 jurisdictions in the Puget Sound region, and stopping FEMA from processing floodplain map revisions within all 122 participating NFIP jurisdictions in the Puget Sound region, until FEMA complied with the ESA.

On April 12, 2012, Judge Martinez, U.S. District Court, Western District of Washington, denied NWF’s request, concluding that NWF had failed to make the necessary showing of “irreparable harm” to the ESA listed species in the absence of the injunction. To prevail on a request for a preliminary injunction in an ESA case, the plaintiff must demonstrate both that it is likely to prevail on the merits of the underlying claim (here that FEMA is violating the ESA) and that the ESA listed species is likely to suffer irreparable harm absent the injunction.

In making its case for irreparable harm, NWF relied almost entirely on the conclusions in the NFIP BiOp that FEMA’s pre-2008 implementation of the NFIP caused jeopardy and take to the ESA listed species. Judge Martinez rejected this approach. Without expressing any position regarding the adequacy of FEMA’s efforts to date, Judge Martinez explained that, although FEMA may not have fully implemented all elements of the RPA, FEMA had plainly made significant changes to the way it implements the NFIP. Judge Martinez explained that NWF needed to show irreparable harm based on the way FEMA is implementing the NFIP now, not based on how it implemented the program prior to the 2008 NFIP BiOp. The Judge wrote: “Since FEMA has significantly altered the manner in which it implements the NFIP in the Puget Sound region, the BiOp’s conclusion that the 2008 version of the NFIP caused jeopardy to listed species is insufficient to demonstrate that the current implementation of the NFIP also is likely to cause jeopardy.” Order at p. 18. Thus, Judge Martinez determined that although NWF had shown the there was a possibility of harm, NWF had failed to make the requisite showing of likelihood of harm necessary to support a preliminary injunction.

Having concluded that NWF had failed to demonstrate irreparable harm, Judge Martinez declined to opine on the merits of NWF’s case and its likelihood of success. In a footnote, however, Judge Martinez did “note that the BiOp does not appear to support Plaintiff’s strict interpretation.” Order at 9, fn 1.

New Law Modifies Programs Protecting Natural Resources

Katie F. Cote, AICP — Thu, 12 Apr 2012 07:47:03 -0800

Posted by Katie F. Cote, AICP

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.

Under 2ESSB 6406 the Department of Fish and Wildlife’s Hydraulic Project Approval (HPA) will for the first time require a $150 application fee. An HPA is required for work conducted at or below the ordinary high water mark of waters of the state and is meant to prevent negative impacts to fish.

The fee for Forest Practice Applications (FPA) will generally increase threefold, and the approval will be required to consider impacts to fish. In this way, in cases where a project requires both an HPA and an FPA review, an exemption from the HPA can be granted.

Another significant element of 2ESSB 6406 relates to State Environmental Policy Act thresholds for categorical exemptions. The bill requires Ecology to conduct rulemaking to raise the level of development that could qualify for a categorical exemption under SEPA, including increasing the maximum threshold levels for residential construction, certain public facilities, and certain agricultural activities. In conducting its rulemaking, Ecology is prohibited from adding new subjects, such as greenhouse gasses or climate change. The bill also includes a provision that allows a planned action to be adopted for an entire jurisdiction although the likelihood of any jurisdiction utilizing this provision is probably small.

The bill also grants an extension for an additional year to the phase II storm water general permit for Eastern Washington municipalities.

Idaho Passes Law that Prevents Local Governments from Blocking Oil and Gas Operations

Ray Liaw — Tue, 10 Apr 2012 08:34:13 -0800

Posted by Ray Liaw

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.

Van Ness Feldman Launches Federal Funding Resource Center

Shannon Angielski — Fri, 06 Apr 2012 10:38:17 -0800

Posted by Shannon Angielski

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.

Obama Issues Executive Order on Federal Permitting and Review of Infrastructure Projects

Katie F. Cote, AICP — Fri, 30 Mar 2012 13:31:43 -0800

Posted by Katie F. Cote, AICP

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.

Bipartisan Duo Introduce Homeowner Energy Efficiency Bill

Katie F. Cote, AICP — Tue, 27 Mar 2012 09:12:57 -0800

Posted by Katie F. Cote, AICP

Congressmen David McKinley (R-WV) and Peter Welch (D-VT) introduced H.R. 4230, the “Home Owner Managing Energy Savings Act” (HOMES Act). H.R. 4230 would provide rebates to homeowners who invest in energy efficiency improvements. Under the bill, a homeowner who achieves 20 percent energy savings will receive a $2,000 rebate and for every 5 percent in additional energy savings, the homeowner would receive up to an additional $1,000. The rebates would be capped at $10,000 or 50 percent of the cost of the project. According to the sponsors of H.R. 4230, the bill has the support of over 40 key business, environmental, labor and nonprofit groups, including the U.S. Chamber of Commerce, Natural Resources Defense Council, Efficiency First, the Alliance to Save Energy, Council of the North American Insulation Manufacturers Association and Residential Energy Services Network.

Gov. Gregoire Expands Definition of Renewable Energy

Katie F. Cote, AICP — Tue, 27 Mar 2012 09:10:35 -0800

Posted by Katie F. Cote, AICP

The measure makes electricity produced from older biomass facilities, such as pulp mills, eligible for the state’s renewable energy mandate.

Passed in 2006, I-937 requires nearly a third of the state’s utilities, those with at least 25,000 customers, to build toward getting 15 percent of their power from wind, solar, geothermal and certain woody biomass by 2020.

Supporters say Gregoire's measure will benefit rural communities and a struggling timber industry.