Northwest Land Matters Update - September 2016

September 23, 2016

IN BRIEF 

CEQ Releases Final Guidance on Greenhouse Gases and Climate Change in Environmental Reviews

On August 1, 2016, the White House Council on Environmental Quality (CEQ) released Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act (NEPA) Reviews. Draft guidance documents were issued for public comment and feedback in 2010 and 2014. The guidance is intended to provide a level of predictability and certainty by outlining how federal agencies can describe these impacts by quantifying greenhouse gas (GHG) emissions when conducting NEPA reviews in order to provide a better understanding of the potential climate impacts of proposed federal actions. Agencies are to consider: (1) the potential effects of a proposed action on climate change by assessing GHG emissions, and (2) the effects of climate change on a proposed action. The guidance encourages agencies to use available tools to quantify projected GHG gas emissions of proposed federal actions, determine the appropriate level (broad, programmatic or project- or site-specific) and extent of quantitative or qualitative analysis required to comply with NEPA, and to consider alternatives that would better enable affected communities to deal with the effects of climate change. Where GHG emissions cannot be quantified because tools, methods, or data inputs are not available, the guidance provides that agencies should include a qualitative impacts analysis. The guidance notes that agency consideration is to be governed by a rule of reason. How each federal agency will address this guidance remains unclear. Federal agencies generally follow CEQ rules in implementing NEPA but as independent regulatory agencies, they may take the position that they are not bound by this guidance.

Sometimes the Dictionary Has the Answer—Even in Appellate Court

In Sun Outdoor Advertising v. WSDOT, the Court of Appeals recently ruled against petitioners who sought a permit to erect a billboard in Okanogan County noting that the proposed location was part of a designated "scenic system," and that the purpose of the County’s “Minimum Requirement District” is to "maintain broad controls in preserving rural character and protecting natural resources." The court found that the location was not within an area zoned by the County as a specific commercial or industrial district. Rather, in a location zoned to permit a wide variety of uses, including but not limited to commercial and industrial uses, the city had authority to prioritize the preservation and protection purposes of the Minimum Requirement District. Referencing the dictionary definition of the statute’s term “predominantly,” the court concluded—through a literal tally of the number of specific uses allowed in this particular zoning designation—that there was no particular category of use that predominates. “The broad statement of purpose does not reveal whether a particular use predominates. In this setting, the plain meaning of "predominantly" in RCW 47.42.020(9) is determinative.”

Commerce Updating Critical Area Regulations

The Washington State Department of Commerce is updating its guidance on critical areas regulations including the wetlands rating system, Voluntary Stewardship Program, agricultural activities, and FEMA Biological Opinion. Other areas of review include the availability of LiDAR (data regarding the state’s geology and terrain), monitoring for efficiency and effectiveness, adaptive management, and other new issues, programs and technologies. The primary aim is to gather ideas on what to include in the guidance and how to make it more useable for local governments (easier to understand; usable for small jurisdictions; adding an education component; exploring the relationship with Shoreline Master Program and Voluntary Stewardship Program; Phase II Low Impact Development requirements; and the relationship with other regulatory programs- Drafts are not expected until 2017.

Changes to Ecology’s Voluntary Cleanup Program May Severely Slow Down Review Time

Ecology’s Voluntary Cleanup Program (“VCP”), a popular program for owners of contaminated properties to conduct cleanups, provides that a cleanup can be initiated without formal Department of Ecology (“Ecology”) approval and can often times, avoid the cost and time associated with traditional cleanups. Due to funding and staffing shortfalls, changes to the VCP are about to limit its availability and extend Ecology review time. These changes include a reduction of the complexity of sites eligible for enrollment in the program, establishment of a waiting list, and adoption of new checklists. NWRO will no longer enroll sites in the VCP considered to be “complex.” These include sites that (1) involve sediment or surface water contamination; (2) multiple contaminants, aquifers, parcels or parties; (3) pose severe or imminent threat, or off-property vapor issues; (4) involve landfills; (5) involve unreasonable restoration timeframes; or (6), relate to regional groundwater issues. New checklists are required to ensure that all applications and reports meet standardized criteria upon enrollment in the program. Finally, wait lists will be used to prioritize work flow and site review. As a result, it is likely that opinion letters that address the effectiveness of the cleanup will not be issued within 90 days, and may take at least double that time.

Ecology Seeking Comments on Nationwide Permits

The Department of Ecology is reviewing the proposed 2017 Nationwide Permit (NWP) Program and the proposed Seattle District Regional Conditions. Pursuant to Section 401 of the Clean Water Act and the Coastal Zone Management Act,, Ecology has the authority to condition or deny the use of any nationwide permits within the state to ensure that activities authorized under the NWP program meet state water quality standards and comply with state shoreline laws. Ecology is requesting comments through September 30th from the public, state and local agencies, tribes, and other interested parties on the proposed 2017 NWP Program.

Washington Adopts First-Of-Its-Kind Rule to Combat Climate Change

The Department of Ecology is launching a new plan to combat climate change with a first-of-its-kind clean air rule that caps and reduces carbon pollution.

Under the new rule, businesses that are responsible for 100,000 metric tons of carbon pollution annually will be required to cap and then gradually reduce their emissions. If a business cannot limit its own emissions, it has other options including developing an energy efficiency program or by buying carbon credits from others or from other approved carbon markets.

The plan relies on businesses to trade independently among themselves and with other markets. All emissions reductions, projects and trading would be validated by independent auditors with oversight from Ecology. Natural gas distributors, petroleum fuel producers and importers, power plants, metal manufacturers, waste facilities, and state and federal facilities would be included in the plan and need to show their emissions are declining by an average of 1.7 percent a year starting in 2017. Ecology’s rule goes into effect Oct. 17, 2016.

RECENT NEWS

Mayor’s plan for Seattle’s U District: taller buildings, some affordable housing

Seattle becomes No. 1 U.S. market for Chinese homebuyers

Vapor issues may slow emptying of Hanford tanks

 

###

VNF regularly publishes alerts, industry updates, and news items. Please visit vnf.com for more information on our practices, professionals, and the industries we serve, or you may go directly to our Knowledge Center to access the library and sign-up to receive items directly to your inbox.