Better Building: The Responsible Developer's Blog : Northwest Construction Lawyers & Attorneys : Foster Pepper Law Firm : Sustainable Building & LEED Projects in Seattle & Spokane, WA

During recession should the Responsible Developer spend $38 million to improve existing buildings energy efficiency? The City of Seattle and its partners say yes!

You may recall that last Spring Seattle was the recipient of a $20 million award from the U.S. Department of Energy’s BetterBuildings Program. Since then the City has leveraged other funds to create a pool of $38 million.  The Mayor says the program will create 2,000 green jobs, reduce energy use by between 15 percent and 45 percent in retrofitted buildings, and reduce greenhouse gas emissions by about 70,000 metric tons.

It will also mean work for contractors and suppliers and local tax revenues. These retrofit projects will be located between Central Capitol Hill and the city limits in Southeast Seattle.  Joshua Curtis, Community Power Works manager, said the goal is to create new energy efficiency programs that will help the private sector test what works and what doesn't.  "We're just really focused on using this money now to not only create jobs in energy efficiency but really catalyzing good models going forward,” he said. “I think that what we'll likely see is a lot of these programs, some of them ending up in the city, some of them continuing in the private sector, some of them continuing perhaps in a nonprofit fashion.”

Portions of the program were originally recommended by the Seattle Green Building Task Force which looked at ways to make Seattle buildings 20 percent more efficient by 2020. There are different programs for each building sector.  The first phase was launched last week. It focuses on hospitals and large commercial and municipal buildings, and will use about $4.2 million of the funds. The second phase launches in early March and will  allocate the rest of the money and expand the program to houses, small commercial and multifamily.

According to the Times, Ted Klainer, capital projects manager for Harborview Medical Center, said the hospital is already pursuing energy improvements but this program allows it to expand that effort dramatically. Work involves HVAC, Seattle Steam-fed heating systems, and equipment.  The cost will be in the millions, he said.  Harborview is a state institution so cash is tight.  “Getting those funds just allow you to get more traction quickly to get these things done,” Klainer said. “At the end of the day, when we get systems upgraded, they will even save the taxpayers' dollars, especially over the long term. It's a win-win.”

Yes, responsible development, even in recession, can be a win-win.

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The Washington State Supreme Court has ruled that key provisions of the Municipal Water Law (MWL) are facially constitutional.¹ The ruling affects water rights across Washington State, upholding the flexibility and certainty that the MWL provides to purveyors, municipalities, and other “municipal water suppliers.” However, the Court stressed that the ruling is limited to the “facial constitutional challenges” that were before the Court, leaving room for consideration of similar claims in the future that may be advanced under “as applied” challenges.

Under the MWL, a “municipal water supplier” has distinct legal rights that are largely unavailable to other entities that hold water rights in Washington State:

1. A municipal water supplier’s water rights that were perfected based on system capacity (“pumps and pipes”), rather than beneficial use, are rights in “good standing.”²
2. Municipal water suppliers may hold inchoate water rights without being subject to the state’s relinquishment statute.³
3. Municipal water suppliers may change a water right’s place of use through water system planning.⁴
4. Municipal water suppliers may expand the scope of a water right beyond the population figure in their water right document.⁵
5. Municipal water suppliers may expand the scope of a water right beyond the service connection figure in their water right document.⁶

For the first time in state history, the MWL defined “municipal water supplier”⁷ and “municipal water supply purposes.”⁸ Specifically, the MWL defined a “municipal water supplier” as any entity that (1) provides water to 15 or more residential service connections, or (2) provides water to a nonresidential population that is, on average, at least 25 people for at least 60 days a year.⁹

Because the MWL retroactively applied these provisions, opponents of the MWL argued that provisions in the MWL facially violated separation of powers.¹⁰ The opponents also argued that the provisions facially violated due process under the Washington State Constitution.

The Court unanimously rejected both facial challenges. However, it is likely that the MWL’s constitutionality will be litigated again in an “as applied” challenge. As the Court noted in its opinion, one such case, Cornelius v. Dep’t of Ecology,¹¹ has already made its way to the Washington Pollution Control Hearings Board.

While municipalities and purveyors holding “pumps and pipes” water right certificates will be encouraged by today’s ruling, an element of risk and uncertainty remains as a result of the limited scope of the legal challenges that were before the Court.

_____________________
¹ Lummi Indian Nation v. State, ___ Wn.2d ___ (2010), available at:
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=818096MAJ
² RCW 90.03.330(3).
³ RCW 90.14.140(2)(d).
⁴ RCW 90.03.386(2).
⁵ RCW 90.03.260(5).
⁶ RCW 90.03.260(4).
⁷ RCW 90.03.015(3).
⁸ RCW 90.03.015(4).
⁹ RCW 90.03.015(3) and (4).
¹⁰ The opponents argued that the MWL’s definition of “municipal water supplier” unsettled a previous Washington State Supreme Court decision. See, Theodoradus v. Ecology, 135 Wn.2d 582, 957 P.2d 1241 (1998).
¹¹ Cornelius v. Dep't of Ecology, No. 06-099 (Wash. Pollution Control Hr'gs Bd. Dec. 7, 2007).

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