Northwest Land Matters

White House Memorandum Aims to Speed Up Infrastructure Permitting

Admin — Thu, 23 May 2013 09:06:15 -0800

Posted by Admin

On May 17, the White House issued a memorandum that directs federal agencies to “do what it takes to cut timelines for breaking ground on major infrastructure projects in half.”

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: .

New Legislation Aids Environmental Planning/Development

Katie F. Cote, AICP — Fri, 10 May 2013 14:53:51 -0800

Posted by Katie F. Cote, AICP

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 first aspect expands the ability of local governments to recover costs associated with preparing environmental impact statements (EISs). RCW 43.21C.420 currently authorizes a city to ask a developer to pay a share of the cost of a nonproject EISs for certain types of planning in mixed-use or urban centers. ESHB 1717 will expand this concept so it applies to planned action EISs (RCW 43.21C.440), as well as nonproject EISs for categorically exempt infill development (RCW 43.21C.229).

Under the Washington State Growth Management Act a planned action is a specific development or redevelopment described by a comprehensive plan, subarea plan, or master planned resort plan for which environmental review is conducted early in the planning stages, instead of at the time of permitting. The planned action is adopted by the local government and when development or redevelopment is proposed consistent with the planned action, no new environmental review is necessary. A nonproject EIS is prepared for a governmental action involving decisions on policies, plans, and programs. Completion of a nonproject EIS helps the local government see the “big picture” and can expedite decisions later on. The GMA allows local governments to set a policy where certain kinds of infill development are exempt from SEPA review; however this policy decision can only be made after completion of a nonproject EIS.

The steep cost of preparing an EIS often prevents local governments from undertaking planned action and nonproject EISs. However, investing in this type of early planning can improve the quality of community development and increase predictability for project developers. By allowing local governments to assess fees to developers benefitting from the EISs –similar to the concept of a “latecomer agreement”—the local government can recoup its investment and the project developer is able to save time during the permitting process.

The second aspect of the bill revises the state law covering latecomer agreements (RCW 35.91.020). Upon the developer’s request, the local government must enter into a contract to construct water and sewer facilities required for the development by local ordinance. The developer agrees to pay the local government for the cost of construction, and is still able to pass the cost of these improvements onto future property owners through a latecomer agreement (for a specified number of years). If the local government contributes to the financing of the new infrastructure, it is entitled to a pro rata share of latecomer fees collected by the developer.

The bill passed both chambers of the legislature without opposition.

Congressman Norm Dicks Joins Van Ness Feldman

Saira Rhodes — Tue, 07 May 2013 13:25:53 -0800

Posted by Saira Rhodes

Congressman Norm Dicks has joined Van Ness Feldman as Senior Policy Counsel.

Working with the firm’s Washington, DC and Seattle offices, Dicks will apply his years in public service to his new role, consulting with clients on a wide range of public policy, strategic, and regulatory issues, particularly those in the environmental sector. He will work in both the DC and Seattle offices of the firm.

“Van Ness Feldman has an outstanding reputation as one of the premier law firms focused on the nation’s energy, environment, natural resources, and public policy matters. Like me, the firm has deep roots in both DC and the Pacific Northwest. The culture is one of collaboration among firm professionals and with clients,” said Dicks. “I look forward to joining a team of top-notch professionals committed to providing solutions to those doing business in these industries.”

Congressman Dicks was elected to the House in 1976, and represented Washington State’s 6^th Congressional District. During his distinguished tenure in Congress, he received a rare first-term appointment to the House Appropriations Committee, later becoming Chair of the Defense Appropriations Subcommittee and Chair of the Interior Subcommittee. Dicks retired as the top-ranking Democratic Member of the full Appropriations Committee.

“As a firm with deep roots in Washington, DC and Washington State, we are honored to have Congressman Dicks join our firm,” said Firm Chairman, Rick Agnew. “Norm is highly respected for his wisdom, bipartisanship and legislative skills as a senior leader in Congress. His policy expertise will be a great resource to our clients as well as to his fellow attorneys at the firm.”

Congressman Dicks is extraordinarily well regarded for his legislative acumen and for his commitment to the environment, the aerospace industry, and the military. From 1995 through 1998, Congressman Dicks served as the Ranking Democratic member of the House Intelligence Committee and was awarded the CIA’s Director’s Medal upon completing his service in 1998. In addition to his focus on defense, Congressman Dicks placed a high priority on the environment throughout his Congressional career. As a member of the Interior Appropriations Subcommittee for his entire Congressional career, Dicks worked tirelessly on issues affecting the National Parks, National Forests and Native American issues. Upon his retirement, Norm received the Department of Defense Distinguished Public Service Medal, the highest honor bestowed upon a civilian for his work on behalf of military members and their families.

“Congressman Dicks is a true champion of the State of Washington and his powerful influence and leadership on natural resources, environmental and economic development issues is legendary” said Jay Derr, Managing Partner of the Seattle office. “We look forward to his contributions to our Pacific Northwest practice and are confident his ability to forge solutions on even the most complex and challenging issues will be of huge benefit to our clients.”

Congressman Dicks will be joined at Van Ness Feldman by his long-time staffer, Ms. LaTasha Wortham.

Federal District Court Orders Washington State Agencies to Repair Culverts that Block Fish Passage in Violation of Tribes' Treaty Fishing Right

Saira Rhodes — Thu, 11 Apr 2013 13:44:13 -0800

Posted by Saira Rhodes

On March 29th, the U.S. District Court for the Western District of Washington issued a permanent injunction requiring certain State of Washington (“State”) agencies to provide and maintain fish passage for salmon at numerous culverts under State-owned roads. United States v. Washington, Case No. 70-9213 (W.D. Wash., Mar. 29, 2013). The court imposed the injunction as a remedy following its 2007 declaratory order, finding that the State has built and operates stream culverts that block fish passage to and from the Tribes’ usual and accustomed fishing places, and these culverts deprive the Tribes of the fishing rights reserved by the Stevens Treaties. The court concluded that issuing the injunction will ensure that the State acts “expeditiously” in correcting the barrier culverts, and will provide salmon with access to approximately 1,000 miles of additional stream habitat.

The court emphasized that its ruling is narrowly focused on the State’s specific treaty-based duty to address fish-blocking culverts. Unless overturned on appeal, this decision could affect significantly the programs and budgets of State agencies as they are required to reprioritize funding to remedy the identified barrier culverts to provide fish passage.

In addition, notwithstanding the court’s narrow holding, the Tribes could seek broader application of the decision to address other State activities that potentially impact salmon and salmon habitat.

FEMA Developing Procedures for Tribal Governments to Request Disaster Declarations

Admin — Tue, 02 Apr 2013 13:34:30 -0800

Posted by Admin

The Federal Emergency Management Agency (FEMA) is soliciting comments on a new proposed rule that could make Federal disaster recovery funding much more accessible to Indian tribes. The new rulemaking may result in a breakthrough for Indian tribes that wish to work with FEMA, depending on the strength of public comments and FEMA’s efforts to implement the new rule.

FEMA’s immediate objective is to determine whether existing regulatory requirements developed for a Governor’s request for a disaster declaration should be applied to requests from Indian tribal governments and, if changes are warranted, how the pilot program should be developed to account for the unique needs of tribal governments.

One of the most important questions raised in the FEMA announcement is how FEMA should define “tribal areas” and “tribal lands.” How FEMA resolves this question is particularly important to Alaska Native villages, since the question of what constitutes “tribal lands” has been contentious in Alaska.

For additional information, please contact Dan Press or any other member of our Indian Law Practice group in Washington, D.C. at (202) 298-1800 or in Seattle, WA at (206) 623-9372.

EPA Proposes Best Management Practices to Control Erosion at Construction Sites

Admin — Fri, 29 Mar 2013 10:43:49 -0800

Posted by Admin

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)).

Van Ness Feldman Launches Hurricane Sandy Resource Center

Saira Rhodes — Thu, 21 Mar 2013 08:15:40 -0800

Posted by Saira Rhodes

Van Ness Feldman is helping clients navigate the complicated and often lengthy process of disaster recovery in the wake of Hurricane Sandy. The Center's purpose is to help affected businesses secure federal resources for rebuilding and to keep clients up-to-date with the latest post-Sandy developments in the areas of energy, environment, project development, real-estate, federal funding and public policy.

Click on the links below for detailed information on key federal and state-administered programs tasked with recovery. The Center's web page will be updated frequently, and we encourage you to contact Tracy Nagelbush, Stuart Hall and Michael Chase of our Hurricane Sandy Resource Task Force for more information or questions regarding specific opportunities.

STATE-ADMINISTERED SANDY RELIEF PROGRAMS

KEY FEDERAL SANDY RELIEF PROGRAMS

King County Creates Right Size Parking Tool

Katie F. Cote, AICP — Wed, 27 Feb 2013 09:57:45 -0800

Posted by Katie F. Cote, AICP

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.

Federal Advisory Committee Releases Draft Climate Assessment Report for Public Review

Saira Rhodes — Fri, 08 Feb 2013 09:23:06 -0800

Posted by Saira Rhodes

The National Climate Assessment and Development Advisory Committee (NCADAC), of which VNFGD partner TC Richmond serves as Vice Chair, has concluded that the evidence for a changing climate has strengthened considerably since the last National Climate Assessment report written in 2009. Following extensive review by the National Academies of Sciences and by the public, this newly released report will be revised by the NCADAC and, after additional review, will then be submitted to the Federal Government for consideration.

The NCADAC is a federally-appointed committee tasked with providing a report to the President and the Congress that integrates, evaluates, and interprets the findings of the U.S. Global Change Research Program (USGCRP); analyzes the effects of global change on the natural environment, agriculture, energy production and use, land and water resources, transportation, human health and welfare, human social systems, and biological diversity; and analyzes current trends in global change, both human-induced and natural, and projects major trends for the subsequent 25 to 100 years.

Climate change presents a major challenge for society. This report and the sustained assessment process that is being developed represent steps forward in advancing understanding of that challenge and its far-reaching implications for the nation and the world.

Climate, Energy, & Air Update January 2013

Admin — Wed, 30 Jan 2013 09:16:39 -0800

Posted by Admin

Our Climate, Energy, & Air Update is intended as a general summary of major policy developments that we judge to be of interest to a broad range of our clients and friends.

This month's edition features discussion on the following:

The D.C. Circuit invalidates the cellulosic biofuel volume requirements for the 2012 Renewable Fuel Standard and rejects requests for rehearing its decision on the Cross-State Air Pollution Rule.
The Department of the Interior is reconsidering its regulations for hydraulic fracturing on public lands
EPA will reconsider portions of its emission standards for gas wells and gas storage vessels
President Obama promises action on climate change in his inaugural address
FERC seeks to ease small generator interconnection
A bipartisan group of Senators sends a letter to the President urging approval of the Keystone XL pipeline
A California court rejected a challenge to the offset protocols in the state’s cap-and-trade regulations.