SAN DIEGO—Local developers are facing two new stringent and onerous regulations regarding greenhouse-gas emissions and storm-water management, Neil Hyytinen, a partner at Hecht Solberg Robinson Goldberg & Bagley LLP, tells GlobeSt.com. The California Supreme Court's decision in Center for Biological Diversity v. California Department of Fish and Wildlife, which dealt with the Newhall Ranch project in Los Angeles, eliminated procedures that jurisdictions had previously used to determine the level of greenhouse-gas emissions. And this year, the State Water Board adopted its Storm Water Strategy to further develop regulatory and management approaches to maximize opportunities to use storm water as a resource. This, in essence, requires developers to capture local storm-water runoff and use it for local landscape and agriculture irrigation and groundwater recharge.

We spoke exclusively with Hyytinen, who specializes in land use, planning and entitlements, including environmental and municipal law, about how various jurisdictions in San Diego County are responding to these mandates and how developers can be proactive about the new requirements to avoid delays.

GlobeSt.com: Discuss the Newhall case and describe how it is throwing a wrench in land use processing by changing the methodology for analyzing greenhouse-gas impacts.

Hyytinen: Newhall concerns the analysis of GHG and climate change under the California Environmental Quality Act. Prior case law held that a project that reduced GHG emissions by some percentage from earlier construction techniques (the so-called “business as usual” standard) would not have a significant CEQA impact. The necessary reduction (roughly 26% to 32%) was derived from the state Air Resources Board's analysis of what would be necessary to meet the state's goals without unduly impacting development. The court held that, although the “business as usual” standard was acceptable, it was incomplete because individual projects could still emit CEQA-significant amounts of GHGs even if statewide goals were reached. As such, the analysis must now address the project-specific emissions and link the statewide standard to the emissions of that project.

The court offered agencies two possible solutions: to make that link directly (without really saying how) or to make that link by showing compliance with a regulatory program. The bad news is that the court prefaced its “solutions” by noting that it could not “guarantee” that the use of either approach would actually result in a legally adequate CEQA document.

GlobeSt.com: How are local jurisdictions in Southern California carrying out these mandates, and what are developers doing to successfully respond to the new requirements?

Hyytinen: Newhall left local agencies in a difficult position. They had come up with a legally defensible approach to GHG analysis (navigating the Newhall court's “guidance”), but they also had to act quickly because a multitude of projects already in the pipeline were left in limbo.

The city of San Diego chose the second approach suggested by the Newhall court; showing compliance with a regulatory program, the city amended its Climate Action Plan and adopted a “CAP Consistency Checklist” to provide a streamlined review process and GHG analysis for new projects that are subject to CEQA. The checklist is part of the CAP and contains measures that are required to be implemented on a project-by-project basis to ensure that the specified emissions targets identified in the CAP are achieved. Projects that are deemed consistent with the CAP through the use of this checklist may rely on the CAP for the cumulative impacts analysis of GHG emissions.

San Diego County took the other approach when it adopted its “Climate Change Analysis Guidance.” The guidance encourages the use of the project size-based screening levels published by the California Air Pollution Control Officers Association to determine whether Climate Change Analysis is needed to examine the GHG impacts of a proposed project. With regard to GHG emissions, a 900 metric ton (MT) of annual carbon dioxide equivalent screening level (referenced in the CAPCOA white paper) is utilized as the screening criterion for determining which projects require further analysis and identification of project design features or potential mitigation measures. If the project is below 900 MT, the cumulative GHG impact is deemed less-than-significant, and no further GHG analysis is required. If the project exceeds this threshold, the applicant must undertake further project-specific GHG analysis.

Developers should instruct their project managers and consultants to address GHG analysis early in the process and determine the methodology used by the local jurisdiction. For jurisdictions like San Diego County that use the project-specific approach, the quickest and best approach is to design the project so as not to exceed the 900 MT screening threshold if at all feasible. If not feasible, the developer's consultants will need to carefully work through the prescribed project-specific analysis, which will likely result in the need to implement GHG-reducing design features and mitigation measures. In jurisdictions that have adopted the plan compliance approach like the City of San Diego, the path of least resistance will generally be designing the project to comply with an applicable regulatory plan. Doing so will also likely entail incorporating sustainable features such as those that increase energy and water efficiency and promote alternative modes of transit.

GlobeSt.com: How are various jurisdictions carrying out the new storm-water regulations?

Hyytinen: In November 2015, the San Diego Regional Water Quality Control Board approved significant amendments to the “MS4 storm water permit,” which regulates discharges from large and medium municipal separate storm sewer systems. Effective February 16, 2016, the MS4 permit requires co-permittees to develop new and updated runoff management plans, including water-quality improvement plans and a jurisdictional runoff-management program.

Local jurisdictions are also required to implement a new or updated Best Management Practices Design Manual to eliminate, reduce or mitigate the impacts of runoff from development projects.

GlobeSt.com: How can developers proactively address the new storm water management requirements to avoid development delays?

Hyytinen: One aspect of the MS4 permit that has proved most troublesome for both local jurisdictions and developers to implement is the requirement to demonstrate storm-water infiltration feasibility and to maximize infiltration on a given project site. This entails undertaking preliminary infiltration feasibility screening of the site to guide site planning and initial BMP selection, including characterizing soil, groundwater, geotechnical hazards, utilities and any other factors applicable to the site.

Developers' consultants are required to conduct detailed analyses at proposed infiltration BMP locations to confirm or revise feasibility findings and provide design infiltration rates and recommendations for further infiltration testing that must be conducted during construction, if needed to confirm pre-construction infiltration estimates.

While that sounds relatively straightforward (that is, if you're a geotechnical engineer), demonstrating infiltration feasibility to the satisfaction of the local jurisdiction has proven to be easier said than done. Many recent projects have experienced substantial delays as the developer's consultants go back forth with city or county staff, debating the level of proof needed to demonstrate feasibility, which typically entails ordering the applicant to undertake additional testing to determine infiltration rates and results in multiple revisions to technical reports.

To be fair, the local jurisdiction is in the difficult position of having to implement regulations and standards that were created by another agency, the RWQCB, and each jurisdiction may be subject to enforcement action (by the RWQCB) if they don't get it right. To minimize project delays, we strongly recommend that developers discuss the new MS4 permit requirements with their technical consultants very early in the permitting process. It is critical that the developer's geotechnical consultant and civil engineer meet with their counterparts from the local jurisdiction after preliminary infiltration feasibility screening has been done to discuss preliminary findings and recommendations, whether additional testing is needed and to map out a strategy and game plan for meeting the MS4-permit-infiltration requirements. The developer's consultants should be on a first-name basis with reviewing staff and not hesitate to request follow-up meetings to clarify staff comments and requests, vet draft responses prior to formal resubmittal and obtain specific direction regarding requirements to clear remaining review cycle comments and approve the project's storm-water plans and technical reports.

GlobeSt.com: Discuss the Newhall case and describe how it is throwing a wrench in land use processing by changing the methodology for analyzing greenhouse-gas impacts.

GlobeSt.com: How are local jurisdictions in Southern California carrying out these mandates, and what are developers doing to successfully respond to the new requirements?

GlobeSt.com: How are various jurisdictions carrying out the new storm-water regulations?

Local jurisdictions are also required to implement a new or updated Best Management Practices Design Manual to eliminate, reduce or mitigate the impacts of runoff from development projects.

GlobeSt.com: How can developers proactively address the new storm water management requirements to avoid development delays?

Instant Insights /

Staying Ahead of CA's New Environmental Regs

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