May 25, 2011
On Tuesday, May 24, a New York State Supreme Court judge rejected a legal challenge to the redevelopment of the former Domino Sugar refinery in Williamsburg, Brooklyn, clearing the way for the transformative, mixed-use project to begin construction as early as next year. David Paget and Jennifer Coghlan of Sive, Paget & Riesel, P.C. successfully defended the project on behalf of its developer, an affiliate of CPC Resources, Inc.
Ruling from the bench following oral argument, Judge Eileen A. Rakower upheld the State Environmental Quality Review Act (“SEQRA”) analysis and municipal approvals for the project. The Court rejected claims that the City Council and City Planning Commission had been misled about the developer’s plans and upheld their decision not to compel disclosure about project financing, citing longstanding SEQRA precedent that such disclosure is not required absent “compelling evidence of a sham transaction or that financial sponsors are unwilling or unable to fulfill their obligations.”
The “New Domino” project, which is anticipated to break ground in 2012, will convert a vacant, formerly industrial site along the East River into an integrated development containing open space, community facilities, and commercial and residential properties, including a substantial affordable housing component. It would provide waterfront access on site for the first time in over a century, while preserving many of the former refinery’s historic structures, including the iconic “Domino Sugar” sign.
For more information about the recent decision, contact David Paget or Jennifer Coghlan.
May 13, 2011
Last month, New York City’s Office of Long-Term Planning and Sustainability released an update (“Update”) to PlaNYC, a plan for a “Greener, Greater New York.” The Update is the first full report since the main report was released at the project’s inception in 2007. It provides information regarding the project’s progress, obstacles and shortfalls, and current near and long-term goals.
The 2007 plan presented 127 initiatives. While 97% of these initiatives have already been launched, some have been delayed by a reduction in the City’s capital budget, and others hindered by a lack of federal or state permission, action or funding.
Key Topics of Interest: Neighborhood Development and Brownfields
According to the Update, over 87% of new housing starts since 2007 have been within a half-mile of transit. In addition, the City has created or preserved 110,000 units of affordable housing since 2004, with plans for 165,000 units by 2014. Over 30,000 of these units financed by the City will meet Enterprise Green Communities guidelines for energy efficiency and sustainability. In addition, the City continues to explore underutilized areas as potential new sites for development, including areas of Staten Island and the Bronx.
Progress on brownfields is also reported. In 2008, the City created its Office of Environmental Remediation, which facilitates the nation’s first municipally-run cleanup program (The NYC Brownfield Cleanup Program, or “NYC BCP”). It has also created the Searchable Property Environmental Electronic Database (“SPEED”), an online search engine containing environmental and historic land use information on thousands of sites throughout NYC. The City plans to establish the NYC Community Brownfield Planning District (“CBPD”) Program, under which it will create 25 new NYC Community Brownfield Planning Districts and link these grassroots efforts into larger networks. The City will continue to collaborate with the state and federal governments to improve incentives for brownfield cleanup and development; advocate at the state level for a full liability release for parties who remediate under the NYC BCP; collaborate with local entities to establish low-interest loan programs to fund cleanups; and establish an online document repository for NYC BCP project information. As noted previously on this blog, the City is continuing to encourage participation in this program.
The Update discusses the City’s progress in other environmentally-related areas, including:
- reducing greenhouse gas (GHG) emissions (the goal remains to reduce them 30% by 2030 and 80% by 2050);
- using federal stimulus money to install more than 200 electric vehicle (EV) chargers throughout the metropolitan area (including in commercial parking garages);
- retrofitting over 100 City-owned buildings to be more energy efficient;
- implementing regulations to phase out dirty heating fuels;
- planting one million trees;
- preparing for what may be inevitable results of climate change (rising temperatures and sea levels); and
- approximately 400 very specific short-term goals in a variety of areas to be completed by the end of 2013.
For more information on PlaNYC, and to view the many reports that have been published in conjunction with the program, visit New York City’s PlaNYC website.
Laura Friend is a paralegal at Sive, Paget & Riesel.
May 10, 2011
On April 27, 2011, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“ACOE”) issued joint draft guidance seeking to clarify which wetlands can be considered “waters of the United States” protected by the Clean Water Act (“CWA” or the “Act”). The draft guidance interprets the agencies’ jurisdiction under the Act more expansively than existing guidance, which was issued in 2008.
The Clean Water Act applies to “waters of the United States,” a term that has been regulatorily defined by both EPA and ACOE, and which has been extensively litigated – particularly in regard to the extent to which this term encompasses wetlands. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.” In Solid Waste Agency of Northern Cook County v. ACOE, 531 U.S. 159 (2001), the Court addressed the question of federal jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that such jurisdiction could not be based solely on the presence of migratory birds. In Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), the Court addressed the question of CWA jurisdiction over wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters located 11-20 miles away from the wetlands. The Court failed to reach a majority on this question. Four justices, led by Justice Scalia, rejected the ACOE’s assertion of jurisdiction, Justice Kennedy concurred in the judgment, and four dissenting justices led by Justice Stevens deferred to the agency’s assertion of jurisdiction. Since Rapanos, courts have applied both the plurality’s view and Justice Kennedy’s approach, which are described in greater detail below.
- The plurality opinion authored by Justice Scalia stated that, in addition to traditional navigable waters, “waters of the United States” are “relatively permanent, standing or flowing bodies of water,” and that “only those wetlands with a continuous surface connection to [such water bodies], so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”
- Justice Kennedy concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters, and that wetlands could possess such a nexus if they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 
The Court’s fractured opinion left much confusion in its wake, including over which standard to apply. In a 2008 guidance document aiming to clarify the scope of CWA jurisdiction, EPA and ACOE took the position that regulatory jurisdiction under the CWA exists over a water body if either the plurality’s or Justice Kennedy’s standard is satisfied. The new guidance, which would supersede the 2008 guidance, is the agencies’ most recent attempt to clarify the evolving and elusive definition of “waters of the U.S.” as pronounced by the Supreme Court.
The 2011 Draft Guidance
As compared to the 2008 guidance, the new guidance places a greater emphasis on Justice Kennedy’s “significant nexus” test, providing an extensive description of how the test is to be applied and discussing a broader range of situations where this test would be dispositive. In another departure from existing guidance, the new guidance explicitly describes interstate waters as categorically jurisdictional. Furthermore, the new guidance modifies the agencies’ positions concerning swales, erosional features, and upland-draining ditches characterized by infrequent or low volume flow. While the 2008 guidance states that these bodies are not jurisdictional, the new guidance only excludes them if they are not tributaries or wetlands, and discusses how to determine if they are tributaries or wetlands. Finally, as compared to the 2008 guidance, the new proposed guidance provides a more explicit and extensive list of waters over which the agencies would generally not assert jurisdiction, thus providing greater certainty that activities affecting these waters would not trigger federal jurisdiction.
The following table compares selected key features of the 2008 guidance and the 2011 Draft Guidance:
||2011 Draft Guidance
Agencies Categorically Assert CWA Jurisdiction Over the Following Waters:
- Traditional navigable waters
- Wetlands adjacent to traditional navigable waters
- Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (typically three months)
- Wetlands that directly abut such tributaries
- Traditional navigable waters
- Interstate waters
- Wetlands adjacent to either traditional navigable waters or interstate waters
- Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
- Wetlands that directly abut relatively permanent waters
Agencies Will Assert CWA Jurisdiction Over the Following Waters if a Fact-Specific Analysis Finds a Significant Nexus to a Traditional Navigable Water (or to an interstate water, under the 2011 Guidance only):
- Non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary
- Tributaries to traditional navigable waters or interstate waters
- Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
- Waters that fall under the “other waters” category of the regulations, at 33 C.F.R. § 328.3(a)(3). The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.
Agencies Will Not Generally Assert CWA Jurisdiction Over the Following Waters:
- Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
- Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water
- Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”
- Waters excluded from coverage under the CWA by existing regulations
- Waters that lack a “significant nexus” where one is required for a water body to be protected by the CWA
- Artificially irrigated areas that would revert to upland should irrigation cease
- Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing
- Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
- Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
- Water-filled depressions created incidental to construction activity
- Groundwater drained through subsurface drainage systems
- Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands
Public Participation and Future Regulations
EPA and ACOE have opened the draft to public comment. Comments are due July 1, 2011 and may be submitted here (click on the “What Do You Think” tab in the middle of the page). While borrowing the notice-and-comment procedures applicable to rulemaking, the Guidance explicitly states that it is “not a rule, and hence is not binding and lacks the force of law.” The agencies have indicated their intent to commence rulemaking after the guidance is finalized. However, the American College of Environmental Lawyers (“ACOEL”) has pointed out that certain aspects of the 2011 Draft Guidance are identified as subject to future rulemaking, but other issues are not, “leav[ing] open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule.”
 See 33 C.F.R. § 328.3, 40 C.F.R. § 122.2, 40 C.F.R. § 230.3(s).
 Rapanos, 547 U.S. at 739.
 Draft 2011 Guidance 1.
 In particular, the ACOE article notes that Draft 2011 Guidance indicates the agencies’ intent to provide clarification via future rulemaking on (a), CWA jurisdiction over “other waters” defined in 33 C.F.R. § 328.3(a)(3), and (b) whether the existence of an ordinary high water mark alone is sufficient to establish a significant nexus to downstream traditional navigable or interstate waters, without requiring a site-specific analysis.
May 9, 2011
New federal, state and local mandates and incentives are prompting the increasingly widespread use of green building practices in both new construction and existing buildings. SPR partner Dan Chorost has authored an article in the May 2011 issue of the Practical Law Journal highlighting this trend. Incentives are becoming available for building owners who adopt green building practices via voluntary programs under state and local laws. More recently, governmental mandates have been issued that require owners to integrate energy efficiency considerations into building construction and operations. Dan’s article summarizes different approaches to green building and describes the relative costs and benefits of using green practices for new and existing buildings.
The article, available here in pdf, describes the origin and purpose of the green building movement, summarizes the voluntary LEED and ENERGY STAR programs, and notes their connection to the ongoing greening of building codes nationwide. Chorost argues that the combination of voluntary programs and mandates means that performance demands for green buildings are gradually increasing, with LEED and ENERGY STAR setting a higher “ceiling” for performance while building codes create a higher “floor.” Building owners that comply with LEED or ENERGY STAR may reap various direct and indirect benefits in various jurisdictions, including expedited permitting, waived fees, and zoning bonuses or allowances.
For private building owners, perhaps the most notable development discussed in the article is the passage of new laws in leading jurisdictions requiring that existing buildings conduct audits and retrocommission their energy systems. These laws generally require owners of certain large buildings to quantify their energy use, report it, and identify and even implement energy-efficiency upgrades that would result in net savings over time. For example, in New York City, a new law requires owners of buildings over a certain size to audit and report on their energy use and to retrocommission existing building systems to improve efficiency. With similar laws being enacted in other leading jurisdictions, this newest green legal trend will continue to accelerate and will become the norm in jurisdictions nationwide.
- Read the full article here.