Articles Posted in Environmental Justice

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There are no surprises in the President’s proposal to vastly narrow the definition of wetlands and other waters protected by the federal Clean Water Act.  Within a month of taking office in 2017, the President issued an executive order directing EPA and the Corps of Engineers to begin that process. 

Nor are there any surprises in the new definition itself.  As expected, EPA and the Corps of Engineers propose to replace the Obama-era definition – which was based upon the Supreme Court’s Rapanos decision – with a much narrower definition proposed by late Justice Antonin Scalia.

Under the new rule, the Clean Water Act’s protections will extend only to truly navigable rivers and their tributaries, as well as wetlands abutting those rivers or having a direct hydrologic connection.  The Clean Water Act will no longer protect millions of acres of wetlands found in different habitat types around the Country, including most of the vernal pools and other seasonal wetlands found throughout California’s rangelands and foothills.

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California’s Native American Heritage Commission has issued its initial approval of draft regulations that, if finally approved, will guide the treatment and disposition of Native American human remains and associated burial items in connection with development projects and other ground-breaking activities in California. Ground-Breaking-Shovel4-300x200

The Draft Regulations. The overarching goal of the regulations is to protect Native American burial sites and remains that may be disturbed as a result of development. The main thrust of the regulations is to address certain problems associated with the “Most Likely Descendants” (MLDs) process and the treatment and disposition of Native American human remains. These problems include, for example, identifying the appropriate MLD for the treatment and disposition of human remains and confidentiality during the process of conferring with landowners regarding that treatment and disposition.

From the perspective of developers and landowners, the regulations appear broad in scope. They apply to any “project,” which encompasses not only “projects” as defined under the California Environmental Quality Act, but also “any ground-disturbing activity that results in the inadvertent discovery of Native American human remains.”

Key elements of the regulations include (1) implementation of specific timing and procedural requirements for identifying tribes or consortia of tribes as MLDs upon discovery of Native American human remains in any “project”; (2) the creation of rules and guidelines for required conferrals (including an optional mediation process) between landowners and MLDs; and (3) the establishment of a Code of Ethics for MLDs and their authorized representatives to follow in the context of the treatment and disposition process. The regulations also clarify the confidential nature of decisions and agreements surrounding treatment and disposition of Native American human remains and limit the types of related information available to the public.

Next Steps in the Process. The Commission’s recent approval is not the final step for the regulations. Instead, this approval serves to initiate the formal rulemaking process for potential future adoption and publication.

Pursuant to the Commission’s approved timeline, the first public comment period is expected to commence on April 13, 2017, and end on June 26, 2017. A public hearing is tentatively set for July 21, 2017. If timely approved and adopted, the regulations will take effect in early 2018.

Key dates in the Commission’s current schedule for the rulemaking process are as follows:

  • February 3, 2017: Commission Staff submits proposed rulemaking package and draft proposed regulations to the California Department of Finance for review of fiscal impact.
  • April 3, 2017: Commission Staff submits required rulemaking documents to the California Office of Administrative Law (“OAL”) for publication.
  • April 13, 2017: OAL publishes Notice of Proposed Action, which begins the formal process of adopting the regulations and the period for public comment and tribal consultation.
  • June 26, 2017: Public comment period ends.
  • July 21, 2017: Public hearing.
  • August 11, 2017: Publication of substantial changes to the proposed regulations, which commences another public comment period of 28 days.
  • September 8, 2017: Public comment and tribal consultation periods end.
  • October 20, 2017: Potential date of Commission adoption (if adopted, the regulations will be submitted to the OAL for final review and submitted to the California Secretary of State, with an effective date likely to take place in early 2018).

The proposed draft regulations presented at the Commission’s January 20 meeting are available here: Most Likely Descendants Regulations 


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Anyone who is considering developing, remodeling, or demolishing hotels, motels, or other visitor-serving lodging in the California coastal zone needs to be aware that these projects are likely to be receiving much greater scrutiny at the Coastal Commission.

California’s Coastal Act requires the Commission to protect, encourage, and, where feasible, provide “lower cost visitor and recreational facilities,” which includes lodging. However, under the Coastal Act the Commission cannot fix private overnight room rental rates or set income eligibility standards for overnight room rentals.

The Commission has been discussing ways to provide low-cost overnight accommodations in light of these limitations. The Commission is now approaching the issue with renewed emphasis due to the recent enactment of AB 2616. AB 2616 allows the Commission to consider environmental justice and “the equitable distribution of environmental benefits throughout the state when acting on a coastal development permit.” The new law defines “environmental justice” as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”

Although AB 2616 takes effect on January 1, 2017, the Commission already is applying environmental justice principles with respect to lodging. At a recent workshop, the Commission’s staff presented preliminary recommendations to address low-cost overnight accommodations. While the Commission has not yet adopted any formal guidance, we expect the Commission will be using the principles discussed at the workshop in evaluating applications in the meantime.

There are some immediate implications that applicants need to plan for now:

First, the Commission is likely to scrutinize renovations and demolitions of existing lower-cost lodging much more closely. The Commission has seen examples of locally approved renovations of affordable accommodations that removed the units from the affordable category. The Commission is now aware of companies investing in that business model. We can expect the Commission to maintain that such upgrades require coastal development permits conditioned to address the anticipated loss of affordability. We also anticipate that the Commission will deny permits to demolish or repurpose affordable accommodations, unless replacement accommodations are first provided.

Second, we can expect that the Commission will require projects that are not affordable to provide onsite low and moderate-cost accommodations (such as camp sites, RV overnight facilities, and similar lower-cost classes of accommodations). We also expect the Commission to  impose higher in-lieu fees on all classes of lodging projects and appreciably higher in-lieu fees on high-cost lodging projects, even where existing affordable accommodations have not been eliminated. The Commission’s data shows that fees collected to date have not been enough to create the affordable accommodations for which they were imposed.

Third, Commission staff’s preliminary recommendations emphasize consideration of a project’s affordability relative to the availability of affordable overnight accommodations in the vicinity of the project. The Commission and the State Coastal Conservancy are developing a database for this analysis. Applicants need to be prepared to address marketplace affordability and project economics before the Commission.

Fortune favors the prepared. That certainly will be the case when it comes to dealing with lodging in the coastal zone in the coming years.