Municipalities and counties are utilizing riparian and wetland setbacks in their zoning and planning efforts on a more frequent basis.  Setbacks can be an effective tool to control growth, protect valuable natural resources as well as meet federal and state Phase II stormwater requirements. 

While setbacks are beneficial, officials must understand the level of impact on both large scale and small development within their communities before adopting them.  Are they prepared to require alteration of major new commercial or residential developments?  Are they prepared to face angry residents whose plans for a deck or storage shed are influenced by no build zones?  Do they understand the environmental benefits gained by adopting setbacks?

Some local officials that quickly enacted setbacks without fully comprehending the requirements or educating their residents have faced strong push back.  Some communities have responded by frequently issuing variances that dilute the effectiveness of setbacks. Other communities are delaying action on stormwater ordinances until ordered to by the State.

I have worked with local governments on stormwater ordinances, including setbacks.  In my experience, it is critical for local officials to gain a thorough understanding of the ordinances, how they will be applied, as well as the benefits and consequences of setbacks. 

QUICK PRIMER ON RIPARIAN SETBACKS:

Riparian and wetland setbacks are typically adopted through local ordinance.  The most common form prohibits any development, with narrow exceptions, within specified distances from either wetlands or streams. 

In Northeast Ohio, many communities have used the model ordinances developed by NOACA and the Chagrin River Watershed Partners.  The basic approach used in these ordinances is to establish  "no-build" areas equal to specific distances from all streams or wetland.  The distances in the model ordinances range from 300 ft to 25 ft based on the drainage area of the stream or quality of wetland.  A property owner can try and obtain a variance from the setback requirements by demonstrating hardship.

Some local governments have taken this basic approach much further.  They have invested significant resources to map all of the sensitive environmental resources within their communities.  Once mapped, areas are either designated for planned development or are to be avoided and protected.   

An excellent example of this approach is the Chippewa Creek Balanced Growth Plan developed by the Cuyahoga River Community Planning Organization through a Balanced Growth grant awarded by the Lake Erie Commission.

 

 

 

 

 

 

 

The map on the left show the entire watershed.  Each color designates a different environmental attribute (such as wetlands, streams or steep slopes) that should be protected.  The map on the right is a satellite image with the critical areas highlighted.  Dark green are "no build zones" (PCAs- Priority Conservation Areas) and light green are designated for future development (PDAs- Priority Development Areas).

Creative approaches can be used to compensate landowners whose land lies in area designated for protection. 

  • Transfer of Development Rights– compensating a landowner for the development value of the land that is being preserved by allowing higher density development elsewhere in the community.  (A good primer on Transfer of Development Rights)
  • Mitigation Banking– establish wetland or restoration areas that can be used to compensate if an impact occurs to a setback area.  This provides flexibility while ensuring the environmental benefits stay within the watershed.

WHAT TO CONSIDER BEFORE ENACTING SETBACK ORDINANCES

1. Flexibility-  Have you built in a level of flexibility within the ordinance that fits your community’s needs?  For instance, will you allow development in a setback if mitigation is provided for the impacts.

2.  Takings-  Do the legal standards for granting a variance provide sufficient protection against taking claims?  Because takings case law is fact specific, requirements within the ordinances must have inherent legal flexibility to avoid providing a basis for a claim.  Application of a setback ordinance that results in a valid takings claims can result in significant compensation to the landowner thus draining local government finances.

3.  Distance of the Setback-  Currently in Ohio there is no minimum setback distance specified in state law.  In addition, there are many different distances utilized.  Some are based upon a formula like the one in the Ohio Department of Natural Resources Rainwater Manual.  Others use standard distances like the approach in the NOACA model ordinance.  The key consideration in choosing a distance is whether it will provide the protection your desire without unnecessarily burdening property owners.

4.  Alternatives to Setbacks–  In Ohio, Phase II stormwater communities must adopt both structural and non-structural "best management practices" as part of their stormwater management plans.  Right now, the State does not mandate adoption of setback ordinances unless the community committed to one in their stormwater management plan.  Would an alternative non-structural BMP requirement, such as mandating use of green infrastructure (green roofs, pervious pavement, rain gardens) be more palatable to residents?

5.  Education-  It is critical that communities use effective public education techniques so citizens understand the value of setbacks.  Good education can be the difference between local governments effective implementation of a setback ordinance or a community that issues frequent variances to avoid confrontation with residents. 

 

Surprised? I was after hearing the old reports of China building a new coal plant once a week.  China has long been the favorite scapegoat for those arguing the United States shouldn’t address climate change without their participation.  But it appears China may be changing direction. 

As reported in the Guardian, the Climate Group released a study that concludes China is the world’s leading producer of energy from renewable sources. 

 Here are some of the fun (and surprising) facts reported in the Study:

  1. China leads the world in installed renewable capacity at 152 gigawatts
  2. Approximately 820 solar PV were produced in China in 2007, second only to Japan
  3. It is the leading world exporter of wind turbines
  4. China investments in renewable energy as a percentage of GDP are almost equal to Germany’s, the world leader
  5. China’s energy efficiency standards for cars is 40% higher than in the United States
  6. China is the third largest producer of ethanol

Clearly, the goal of the Climate Group was to produce a study to combat the arguments raised in the United States that support inaction on climate change without India or China.  However, one statistic highlighted in the Study deserves some additional discussion. 

In 2007, China emitted 5.1 tons of CO2 per capita compared to 19.4 tons for the United States.  While the United States per capita number justifies action, so does the potential for China to grow its emissions. 

China has 1.2 billion people compared to the United States 300 million.  China has already overtaken the US in total emissions with 1/3 of the emissions per capita because it has four times more people.  Without mandatory caps, what will China’s emissions be once 1/2 their population drives cars, purchases more of latest electronics, and have more income to travel?

 

The U.S. Senate Environment and Public Works Committee held a timely hearing on the effect of the Court of Appeals decision vacating CAIR.  There was testimony from US EPA, State, Utilities and one Environmental Group. 

The Senators and all who testified agreed on certain items:

  • Substantial health benefits will be lost without action to replace CAIR (17,000 fewer premature deaths avoided each year)
  • Tremendous uncertainty exists- the market for trading allowances collapsed following the decision (NOx trading stopped, SO2 allowance prices lost 70% of their value in a day)
  • States air quality compliance is in disarray- All who relied on CAIR must redo their clean air plans (SIPs) and will find it extremely difficult to make up the reductions attributable to CAIR
  • Utilities risk losing billions in investments in new pollution controls and purchases of allowances (one utility declared a $100 million dollar loss due to collapse of the allowance market)

With so much agreement, one would assume that quick legislative action is likely to address the problem.  Not so fast- Don’t forget that the CAIR rule came into existence because Congress could not agree on Clear Skies (a cap and trade legislative proposal).  Those same rifts emerged during the Senate hearing.

  • How many P’s? (which pollutants should a program cover- NOx, SO2, CO2 or Mercury)
  • How many States should be in? (28 versus a national program)
  • How steep and fast should reductions be? (there is disagreement even for the two pollutants everyone agrees should be covered- NOx and SO2)

This really is going to boil down to a game of chicken.  On the one side (Democrats, downwind-Eastern states and environmental groups) on the other (Republicans, upwind-Midwest states and the utilities). 

Do those advocating for an aggressive four pollutant bill really want to risk achieving no short term benefits in hopes of more aggressive legislation in the future?   Are they willing to withstand the mess that will ensue in their States without at least a stop gap measure?  Is this really the vehicle to adopt climate change legislation?

On the other side….do Utilities want to face this much uncertainty, especially heading into an election cycle?  Are the Midwest states comfortable that CAIR reductions will be sufficient to meet tougher federal air quality standards?  Are they willing to impose even more costly controls on businesses within their State if cap and trade is taken off the table?

It appears this may be the perfect storm that may actually result in something getting done.  Lets hope so.

In my last post I discussed corporations that are using a vast array of accounting methods to calculate carbon footprints.    An article in the Seattle-Post-Intellegencer discussed variations found in outputs from household on-line carbon footprint calculators.

While US EPA’s forthcoming rule will address measuring emissions of greenhouse gases from large industrial sources, it certainly appears there are more areas needing standardization.  I should not be able to cut in half my personal carbon footprint simply by using a different calculator. 

The article was triggered by a University Washington study of household carbon footprint calculators commonly found and used on the web:

A recent University of Washington study found that when the same values were used with 10 different online calculators, the results varied greatly. In one category, the bottom line for a typical American homeowner varied by more than 32,800 pounds of carbon produced per year.

The variation suggests tallies of carbon emissions have been oversimplified to produce a "one-click" solution to an extremely complicated problem — global warming. Some experts fear calculators suggesting a person plant a few trees to offset driving a gas guzzler may actually discourage needed lifestyle changes that can benefit the planet.

"Everyone assumes that every calculator they use will produce an accurate result, but in reality, there are vast inconsistencies between the calculations being done," said Anne Steinemann, a UW civil and environmental engineering professor who headed the research. "I was really surprised by the magnitude of inconsistency."

The newspaper also did its own research and included a chart showing the dramatic variations.

Have you measured your company’s carbon footprint yet?  Don’t worry if you haven’t,  in the wild west that is climate change sometimes it pays to wait and see how things shake out.  For instance, who would have thought just picking an accounting method for measuring greenhouse gas (GHG) emissions would be so complicated. 

There is no doubt that quantifying emissions is gaining in popularity.  A recent survey of North American supply chain executives determined that 60% decided to measure their emissions.  Their motivations may be fear of impending greenhouse regulations, compliance with existing requirements, customer demands or sustainability initiatives within their company.

While many executives have decided to measure emissions, not all executives are going about it in the same way.  A recent study of greenhouse reporting and verification methods found that more than 34 different protocols and guidelines for reporting emissions have been used.  Variation occurs even among companies located in countries or states with mandatory greenhouse gas regulations. 

Such variation leads to a great deal of inconsistency and therefore, a lack in comparability between corporations’ reports.  There is ever-growing controversy as to whether within various industrial sectors an apples to apples comparison can be made of company footprints or emission reduction targets.

Perhaps things are beginning to take shape, the States have seemed to coalesce around a greenhouse gas accounting method- The Climate Registry.  (The adjacent map shows those states and Canadian provinces who have endorsed the use of the Climate Registry)  However, until US EPA weighs in, you are still risking having to make adjustments to your calculation of GHG emissions.  Fortunately, the sheriff is about to ride into town.

Recently, Congress directed US EPA to publish a mandatory GHG reporting rule, using the Agency’s existing authority under the Clean Air Act. (H.R. 2764, Public Law 110-161).  Congress has required EPA to publish a draft rule by September 2008 and a final rule no later than June 2009.  The long gap between draft and final rule will allow for a rigorous public comment period. 

 

Congress has directed the Rule must address certain key elements, such as:

  • Reporting on emissions from upstream (fossil fuel and chemical producers and importers) and downstream sources (large industrial direct emitters)
  • Mandatory reporting thresholds
  • Frequency of reporting

The EPA is provided discretion to utilize methods already in use and can build upon existing mandatory and voluntary reporting systems, such as:

  • Existing reporting for electric generating units under Section 821 of the Clean Air Act
  • Federal reporting program (Title IV, Climate Leaders, 1605(b))
  • State programs (California, The Climate Registry, RGGI, other State programs)
  • Corporate programs (WRI/WBCSD)
  • Industry protocols (API Compedium, CSI Protocol, or International Protocols)

If you’re not familiar with all of the references to various protocols that’s okay.  It may be prudent to wait until EPA at least releases its draft reporting rule to get an idea of how this shakes out. 

Perhaps EPA will say that use of the Climate Registry method is acceptable for purposes of its rule, in essence endorsing the standard. Due to the number of states and provinces already backing the Registry, that may be very likely.  However, what if EPA decides to build upon or modify requirements?

Keep in mind that even if you wait until September you still risk EPA will make changes during the public comment period.   Companies and organizations that have invested in a certain protocol are going to fight hard to see the EPA rule endorse it.  But in my opinion it would be a grave mistake for EPA to try and avoid controversy by not picking any winners.  Standardization is a must, without it there will always remain issues of inconsistency.

 

 

 

 

 

 

 

 

 

In a prior post discussing the impact of the Supreme Court’s rulings limiting federal jurisdiction over waterways, I discussed how state’s may feel increasing pressure to fill the gaps in federal authority.  A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak. The Globe reported the following: 

The Bush administration didn’t pursue hundreds of potential water pollution cases after a 2006 Supreme Court decision that restricted the Environmental Protection Agency’s authority to regulate seasonal streams and wetlands.

From July 2006 through December 2007 there were 304 instances where the EPA found what would have been violations of the Clean Water Act before the court’s ruling, according to a memo by the agency’s enforcement chief.

Two questions I have relative to this story.  First, does this foretell a strange trend where US EPA starts referring cases to the states for enforcement?  Second question- when will the battle shift to permitting?  It cannot be long before a company challenges federal authority to require an NPDES permit.  The most likely candidate in my mind will be something like the requirement to obtain a permit for construction activities.