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

Do Responsible Public and Private Owners incorporate Green, Sustainable components into infrastructure to better manage stormwater?  Absolutely, and locally we have some excellent examples.

First here's the concern, as eloquently expressed by a member of the American Association of American Geographers ("AAG") as part of an annual meeting being held in Seattle this week:  

"America's water infrastructure is in crisis.  Nationwide, conventional urban and exurban storm water management systems increasingly require extensive replacement and repair, leaving residents susceptible to flooding, infrastructure breakdowns, and contamination risk.  However, estimated stormwater systems rehabilitation costs run in the billions, an expense that many municipalities are unable to meet. To address this problem, officials in several U.S. and international cites are increasingly turning to an urban design based alternative, termed green infrastructure to to supplement conventional surface and subsurface drainage systems."

 King County has made just such a proposal for the Barton Basin area.  KC plans to design and build "green stormwater infrastructure" ("GSI") to control combined sewer overflows.  The GSI project will consist of planted areas call "rain gardens" between sidewalks, curbs and others areas in several locations in West Seattle.  This is the first "green" project KC Wastewater will implement.  The goal is to have these rain gardens trap millions of gallons of water a day that would otherwise enter the combined sewer system.  

Seattle Public Utilities is also heavily promoting the use of what it call Natural Drainage Systems projects ("NDS").  These systems also rely on open spaces of trees, smaller plantings, swales, soils and small wetlands to absorb water and filter out contaminants like oil, paint, fertilizers and heavy metals-before those contaminants reach our lakes, streams and Puget Sound. 

For you bloggers who may be homeowners and green do-it-yourselfers, SPU also has another link for called "Residential Rainwise Program" that encourages the use of landscape designs that incorporate the use of cisterns, rock filled trenches, grass strips, rain gardens and use of porous pavers (instead concrete or asphalt).  The Department of Ecology has a great guide for protecting waterways entitled "Protecting Aquatic Ecosystems."

In case promotion of green infrastructure in recession may not sell with some voters, perhaps some negative reinforcement may help.  For a really disastrous local example of what can happen when too much contaminated stormwater and wastewater enter our waterways, take them on a drive to lower Hood Canal on a gorgeous late summer day.  Go for a walk on the beach.  If the timing is right, they may see the red algae bloom in the otherwise blue water and the dead sea life littering the shoreline.

A sad but poignant reminder why all public and private owners need to work together to fund the protection of our priceless waterways. It is the responsible thing to do.     

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The 2010 Washington State Legislature amended the State Environmental Policy Act (“SEPA”) to provide cities with a new voluntary tool to encourage urban infill development. This tool, or as many call it, “upfront SEPA,” encourages urban infill by providing greater regulatory certainty for infill development. The 2010 amendment bars administrative and judicial appeals of SEPA compliance for infill development when a city prepares a nonproject Environmental Impact Statement (“EIS”) that analyzes the environmental impacts of future infill development at the planning stage. This is the Legislature’s latest attempt to accommodate projected population growth in urban areas in order to avoid rural sprawl and the conversion of forest and agricultural resource lands.

Although SEPA already contained several provisions designed to facilitate infill development, the 2010 SEPA amendment, RCW 43.21C.420, improves upon the previous measures. Specifically, the amendment:

• Eliminates all SEPA-based appeals for infill development projects if: (1) the city completes a nonproject EIS for comprehensive or subarea plan policies and the development regulations designed to accommodate such infill development; (2) the infill development is consistent with these comprehensive or subarea plan policies and development regulations; and (3) an application sufficient to vest the project is submitted within a period specified by the city, not to exceed ten years.
• Explicitly authorizes cities to charge a late-comers fee to recoup the costs associated with preparing the nonproject EIS.
• Requires increased public notice to encourage early public participation in the planning and nonproject SEPA review processes.

Only cities meeting statutorily defined eligibility requirements may exercise the authority granted by the 2010 SEPA amendment. Eligibility extends to any city with a population over 5,000, located in counties governed by the Growth Management Act, that has a designated mixed-use or urban center subarea, or meets specified urban transit criteria. In Eastern Washington, different transit-oriented eligibility criteria apply to cities located outside of Spokane County.

If a city elects to invoke the 2010 amendment, the city is subject to several requirements:

• The city must establish comprehensive or subarea plan policies and development regulations that allow and encourage high density infill.
• The city must complete a nonproject EIS for the plan policies and development regulations that analyzes the environmental impacts of development consistent with the policies and regulations.
• The city must consider establishing a program for the transfer of development rights from county-designated agricultural and forest resource land to the area targeted for infill.
• The city must hold a public meeting before a scoping notice is issued for the nonproject EIS. Notice of the meeting and notice of the scoping must be mailed to all property owners within the subarea and other interested parties outside of the subarea.

The amendment is lengthy, containing numerous detailed provisions governing eligible cities, authority to recoup the nonproject EIS preparation costs, and immunity from SEPA-based appeals. Some of these provisions vary for local governments depending on population and region of the State. Nonetheless, the 2010 SEPA amendment provides cities with an effective voluntary tool to encourage urban infill development.

For additional information on the amendment, please contact Jeremy Eckert (eckej@foster.com; 206.447.6284) or Dick Settle (settr@foster.com; 206.447.8980).*

* Foster Pepper land use attorneys, Pat Schneider, Tayloe Washburn, Dick Settle, and Jeremy Eckert, were deeply involved in drafting the 2010 SEPA amendment (ESHB 2538, 2010; RCW 43.21C.420). The legislation was endorsed by the Climate Action Team, received unanimous approval from the State Senate, and nearly received unanimous approval in the State House.

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Does responsible development sometimes require that the best highest use of land is to preserve it as open space?  A growing number say yes!

For decades, glossy real estate ads have raved about vacant land with “waterfront”, “mountain view” or “sound view”, making many believe that the best highest use of such land was to develop it for human occupancy. Thankfully many now observe that due to the rapid development of the last 3 decades, the open spaces in Western Washington are shrinking. Many in the real estate development community now advocate that the best highest use of open spaces like waterfront and mountain views is to preserve them.

A recent and great example is the preservation of such precious spaces was accomplished earlier this month when a partnership resulted in the preservation of 94 acres in Puget Sound known as “Devils Head .” The acquisition of this land for $3.4 million was a joint venture with funding from government agencies, the Washington Wildlife and Recreation Program  the Salmon Recovery Funding Board  and the Pierce County Conservation Futures Program and a big assist from the Cascade Land Conservancy.

The Cascade Land Conservancy reported that this acquisition could link trails with existing open spaces to create a trail system 20 miles long. A huge positive step considering that over the last 3 decades more than 2 million acres of open spaces have been subsumed by sprawling development. Ironic that the open spaces that drew people to these areas have in large part, vanished. The Conservancy has long been concerned that over development has intensified flooding and erosion and is contributing to warmer weather and other negative climate change. In 2005 the Conservancy launched a plan called the “Cascade Agenda” that over 100 years would acquire the conservation and preservation of 1.3 million acres of waterfront and mountain view open spaces.

This recent achievement also seems to be in sync with Governor Gregoire’s Smart Communities Award program that recognizes actions like innovative and wise land use and resource management, and that recently acknowledged Skagit County for its county wide urban growth area open space plan. 

So it appears that due to responsible development, that the glossy real estate ads in the not to distant future may rave about homes that are just a short bike ride or walk away from forever preserved open spaces with “waterfront” or “mountain view” or “sound views.” Let’s hope so.         

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