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- Planning and Funding Climate Resilient California Coastal Infrastructure
According to California’s projections, the miles of highways susceptible to coastal flooding in a 100-year storm event will triple from current levels to 370 miles by 2100, with more than 3,750 miles exposed to temporary flooding. Coastal erosion and flooding also threatens California’s rail system and utility infrastructure. In this episode of Digging Into Land Use Law, Nossaman’s Shant Boyajian, Liz Klebaner, Ben Rubin and Mary Lynn Coffee discuss state climate resiliency and environmental justice policies relating to coastal transportation and water infrastructure projects and available funding for such projects under the Inflation Reduction Act of 2022.
Transcript: Planning and Funding Climate Resilient California Coastal Infrastructure
0:00:01.0 Mary Lynn Coffee: California has more linear miles of coastline than most other US states and territories except for Alaska and Florida. Over the course of this century, the effects of sea level rise will be felt by thousands of coastal residents and businesses. Public infrastructure will also be impacted.
0:00:21.6 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.
0:00:38.1 MC: Welcome. Thank you for joining us today. I'm Mary Lynn Coffee and I'm an environmental and land use partner here at Nossaman. I work with clients to comply with and obtain permits for infrastructure projects under state and federal environmental laws such as the endangered species permits, wetlands, water quality, and other natural resource protection law permits. We've invited you today to discuss climate resiliency in California. The state's committed to preventing climate change as a first priority, but also recognizes the inevitable challenges for infrastructure associated with climate change that are imminent. By way of example, the legislature has acted on this understanding by mandating that the Natural Resources Agency here in California should develop and update every three years a statewide climate adaptation strategy. That strategy sets policies and implementing actions for climate resilience across industry sectors, including for all infrastructure.
0:01:38.6 MC: In 2020, Governor Newsom signed his executive order number N82-20, which directed state agencies to build resilience across the state, including undertaking climate smart land management practices. The executive order in relevant part declares that climate crisis is happening now and orders state agencies to conserve the coastline, safeguard economic stability, build climate resiliency against extreme climate events, and expand equitable outdoor access and recreation for all Californians.
0:02:12.0 MC: In 2021, the state climate adaptation strategy indicates how we're going to do all those things. That strategy notes the sea level rise is accelerating, increasing flood impacts and erosion and raising groundwater tables. The strategy also projects that 31% to 67%, think about that, one third to two thirds of Southern California beaches could be lost by the end of this century in the absence of adaptation strategies. The strategy identifies the California Coastal Commission and local governments among key implementing agencies with respect to coastal resilience planning and with respect to sea level rise adaptation.
0:02:53.4 MC: So today's panel features three top legal experts in the area of infrastructure resiliency. They are going to focus on design, permitting and financing challenges for coastal infrastructure projects in light of this adaptation necessity. Our panelists are first, we have Liz Klebaner. This is an environmental partner here at Nossaman. She advises private and public agency clients on a variety of complex land use and environmental matters, including permitting of infrastructure projects under and compliance of projects with CEQA, the California Environmental Quality Act, NEPA, the National Environmental Policy Act and the California Coastal Act. She also litigates in state court to defend and obtain infrastructure project approvals.
0:03:40.1 MC: Liz has worked with the California Legislature and public agency clients in the development of streamlining legislation for CEQA. Ben Rubin is also with us today. Ben is an environmental and land use partner here at Nossaman. He counsels developers, public agencies, landowners and corporate clients in permitting approvals and court litigation matters dealing with the federal and state Endangered Species Act, NEPA, CEQA, the California Coastal Act, the California Permit Streamlining Act and the federal and state constitutions, mostly with respect to private property rights and acquisitions. Typical matters that Ben assists with would involve federal and state permitting issues, local zoning issues and variances, environmental planning and compliance and right to take challenges and valuation of property interest.
0:04:29.6 MC: And finally, our partner, Shant Boyajian. Shant is a partner in Nossaman's Infrastructure Contracting and Procurement Practice Group. He's also a leader in the firm's Governmental Relations and Regulation Group. He advises public agencies on a wide range of innovative methods to procure and deliver the nation's largest, most complex infrastructure projects. At the same time, Shant remains abreast of all federal funding legislation and federal agency and policy initiatives that affect public agency planning, designing, permitting and funding infrastructure projects.
0:05:03.3 MC: Before joining, Shant, he had an illustrious career. He was senior counsel to the US Senate Committee on Environment and Public Works, where he led the development of FAST, Fixing America's Surface Transportation Act. And he also served prior to that as counsel to the US Subcommittee on Highways and Transit, where he helped negotiate and draft MAP-21 for fiscal years 2013 and 2014. So with that, let's get started as we move on to our first question for our panel. What are some important planning considerations for infrastructure or other projects located or proposed in the coastal zone? And if you could please pinpoint your advice as to what our listeners should be thinking about when they design projects. Liz, do you want to jump into that first? And then maybe we'll have some comments as well from Ben.
0:05:55.8 Liz Klebaner: Sure. Thanks for that question, Mary Lynn. I think there are three important considerations as you're thinking about your project, whatever it is, whether it's a public infrastructure project or even a private development. First, the Coastal Commission will be looking at sea level rise impacts over the course of the project's useful life. So it will be important to develop a range of project alternatives that allow the decision maker, if it's the commission or the local jurisdiction, as well as the public, to weigh the costs and the benefits of landward realignment or other mitigating strategies against the cost of and benefits of hardening or armoring.
0:06:36.8 LK: And the second consideration, and this is true for probably every single major infrastructure project in California as well as every single project proposed in the coastal zone, is think about stakeholder engagement. Projects proposed in the coastal zone often impact iconic beaches and scenic and recreational opportunities that are really important to local communities. And early coordination with stakeholders in the development of alternatives and mitigation measures is really essential to your success. And this could be accomplished through sustained stakeholder engagement throughout project development, through public meetings and open houses and other opportunities for public comment.
0:07:18.1 LK: Then, take that information and let it inform the project design and whether and when it's appropriate to offer ecological and public access benefits. For linear projects like roads, for instance, some examples could include trails or other amenities in the prior road right of way, widening of shoulders to allow for bicycle and pedestrian use and access to coastal resources. So other examples could include engineering solutions that are intended to avoid or minimize impacts to Ecologically Sensitive Habitat Areas or ESHA.
0:07:54.6 LK: And then lastly, since I'm a CEQA lawyer, I have to talk about CEQA. CEQA requires an analysis of impacts on coastal resources. So don't wait until the commission's review of the coastal development permit or the local coastal program, whatever the project that issue is to start those discussions with the commission staff. And this important point was actually addressed in the California Supreme Court decision, 2017 decision in Banning Ranch Conservancy v. City of Newport Beach. In that decision, the court held that an EIR for a mixed use development was inadequate because it failed to identify and address impacts to ESHA. And also the record didn't reflect that there had been substantial consultation with the commission staff in the development of the project.
0:08:42.4 LK: So also from a planning perspective, it makes a lot of sense to try to align the CEQA document with the terms of future coastal permits or approvals. I also wanted to mention one successful example of stakeholder coordination in the Gleason Beach Highway realignment project that was undertaken by Caltrans. There, Caltrans determined to relocate a portion of Highway 1 landward in Sonoma after finding that continued hardening of the coast was just infeasible. And the ultimate project that obtained a CDP addressed local concerns by incorporating ecological public access and other visual benefits that were important to the local community.
0:09:25.3 Ben Rubin: And sort of building off of what you're saying Liz, there's really a requirement, as you are thinking about the project to build in time to deal with your coastal development permit or your local coastal program. A lot of... With major public infrastructure projects, those are going to require a permit from the commission, and they also might require permits from the local jurisdictions that they have a certified local coastal program. There's a public works plan that you can try to take advantage of for large projects that deal with multiple jurisdictions. The trick there is that these plans require consistency across the local coastal program.
0:10:01.5 BR: So if you're touching five or six different jurisdictions, then you need to make sure everything lines up. If you're touching a jurisdiction that doesn't have a certified LCP, which is still true in some jurisdictions along the coast, then you need to comply with the Chapter 3 policies. It's a bit of a mishmash. It can take time to get those LCPs approved because any amendment to an LCP has to go to the Coastal Commission after it's approved by the local jurisdiction. So it's a long process. It's been successfully utilized by San Diego at the Low Sand Corridor, so there are examples of it working.
0:10:37.3 BR: However, again, it's a very long process. You have to take that into account when looking at what are all the permits you're going to need. If there's a coastal approval, are you going to need that? There's also the Coastal Zone Management Act that can overlay with all this if you need a federal approval. And then just with planning your projects, you have to deal with sea level rise. It's happening. The commission is taking a very aggressive stance with it. They have what they use the H++ scenario, which means that you have to plan for depending upon the life of your project, dealing with infrastructure projects. We're talking about transit. If we're talking about roads, the life of those projects are usually out to 2100. That means a 10-foot sea level rise that you have to deal with as far as project requirements and mitigation.
0:11:22.8 BR: And when you deal with things like that, the commission is also going to look at not only are you mitigating for the potential environmental impacts, but are you also mitigating for environmental justice concerns? So you can't just, for example, build a road that will take public access or that will impact low-cost recreational opportunities. Those are things the Coastal Commission is keeping a very close eye on these days and making sure that projects don't have those impacts. So those are just sort of an overview of things to add on to what Liz already said.
0:11:54.5 MC: Just a couple of follow-ups. Liz, we often advise clients to make sure that there's consistency in their CEQA document and in their state and federal permits, including what they think their Coastal Act permit is going to look like. Can you just give a quick summary of the risks involved when clients don't do that? Because it does take extra effort, work, money, consultant time, et cetera, to make them consistent.
0:12:17.1 LK: So one risk is you're going to have to recirculate your CEQA document. The law requires recirculation if there's evidence that's been added to the EIR that there's a new or more severe impact than was previously disclosed. So once you start talking to Coastal Commission staff and going through that process, you might get some additional information or opinions that weren't fleshed out in the record during the CEQA process that might cause you to have to go back and redo your document circulated for further public comment. So that's one major risk. And then the other major risk is if there is the possibility of third-party litigation, there are implications for the defensibility of the document if there are inconsistencies between your CEQA document and your later Coastal Commission approvals.
0:13:08.3 LK: These are issues that come up a lot, and anyone developing a project or reviewing a project should think about the long-term record development and the risk of litigation and how to mitigate it.
0:13:17.9 MC: You mentioned, Ben, the H++ sea level rise analysis, which is, as you said, aggressive. Some people say conservative, but it certainly anticipates a great deal of sea level rise in a fairly short period of time. And the question was raised, is there a policy or guidance memo from the CCC suggesting that they should be using the H++ scenario? So where is the requirement for using that come from?
0:13:43.9 BR: There is a commission policy on that. It's the state Sea-Level Rise Guidance Document. We'll talk about it a little bit later. There's also a Draft Infrastructure Guidance Document that was issued earlier in 2021. If you just deal with the commission, private development or public development, you're seeing it in real time that that's what they're requiring. It's a policy that's being implemented on a regular basis.
0:14:11.9 MC: Shant, tell us before we move on to more questions about these policies and how they affect the design. I wanted to ask you, what should we be considering? What kind of federal considerations do we need to be taking into account and addressing as we're planning this infrastructure? If we want to make sure that the infrastructure has been designed in a way that we can get federal funding for implementing resiliency policies.
0:14:40.2 Shant Boyajian: Absolutely. Thanks, Mary Lynn. And there are obviously a lot of different considerations whenever you're trying to prepare a project to be successful for federal funding. But there's one in particular that I want to talk about because it's obviously important and relevant, especially recently in the evaluation of federal funding opportunities. And that is this administration's Justice40 Initiative. This is an administration led priority with the goal of directing 40% of the overall benefits of certain federal investments towards disadvantaged communities. And the way that this is being implemented is that the administration has issued an executive order applicable to federal agencies that provide funding opportunities for these types of projects.
0:15:26.7 SB: And then it's up to each agency, each department or modal administration to individually implement the Justice40 requirements for that particular funding stream that that agency will manage. And so it is still being implemented, but it's incredibly important that projects, especially those related to climate change, very actively consider the impacts of the project on disadvantaged communities and the planning process. I was recently sitting in on a debrief with a large transportation agency that was unsuccessful in a recent federal funding application. And a large part of the reason that they did not receive a selection for that funding is because they did not adequately address the impacts of the project on disadvantaged communities and provide evidence for how that was going to be for not only what they had done to design the project in a way that would benefit disadvantaged communities, but also quantify the benefit that that would have after the project was in implementation.
0:16:28.5 SB: And so that's just one practical example of how important this is. One other specific thing I want to mention on this point, and we'll talk about this specific funding program later on. But the RAISE program, which the US Department of Transportation administers, it's a very flexible funding pot. This year, the RAISE Notice of Funding Opportunity actually articulates specific requirements that each project need to exhibit in order to meet the administration's Justice40 Initiative. And that is all about how the project is being planned. And one example from the RAISE NOFO is that the projects need to complete an equity impact analysis. The projects need to adopt an equity inclusion program and other design features the project actually need to specifically look at how past barriers and some of these disadvantaged communities are going to be redressed.
0:17:23.5 SB: And so, again, each actual funding program may have different specific ways that Justice40 priorities need to be addressed. But the overall point is that this is a really important issue that needs to be taken into account at the planning stages of these projects, especially if you want to position yourself for federal funding.
0:17:45.7 MC: Let's delve back into a little bit more of the state requirements with respect to infrastructure resiliency. And I again want to turn back to Liz and Ben and ask, when is it appropriate to consider revetments or seawalls in lieu of nature-based adaptation strategies when designing coastal infrastructure projects?
0:18:08.2 BR: I think the Commission always has a preference for nature-based adaptation strategies. So, if that's something that's a possibility and it's economically feasible, that's something you should look at. As a policy, the Commission is generally opposed to shoreline protective devices. That's one of the big fights we're seeing with private development up and down the coast is, that right over the private property owner's use of a shoreline protective device for a pre-1976 development versus something post that date. However, it's a little bit of a different calculus when dealing with public projects because you're not dealing with just a private developer versus a public use, which is the public beach. And there's a belief that shoreline protective devices result in a reduction in beach, which is lack of beach access, reduction in beach access.
0:18:57.0 BR: On the public project front, what they'll actually do is they'll look and see it's more of a public benefit. What is the transportation project? Is it providing access to the coast in and of itself, which is a public benefit for coastal resources? And what they've done is, when doing that balancing, the Commission will allow new shoreline protective devices for an interim period of time, a sort of phasing. It won't allow it long-term because even with those public projects, it does not consider shoreline protective devices a long-term solution to sea level rise. But it will allow for a short-term solution and condition the project on coming up with a longer-term solution such as either maybe relocation, such as maybe raising the height of that bridge or maybe they'll try to impose those natural adaptation strategies. So it's a little bit more of a leeway with public projects than with private.
0:19:57.7 LK: I'll just add to the points that Ben has already made, and the focus of today is really on public infrastructure. So some of these recommendations may differ with respect to privately advanced developments. You really have to look at the terms of the LCP. That applies to you if there is one, and how it deals with hardening of the coast, as well as seawalls and revetments to protect private property. But with respect to public projects, as Ben already mentioned, the state is really favoring nature-based adaptation strategies over revetments. But there are certain caveats to that, and phasing has something to do with it.
0:20:36.3 LK: Project design measures aimed at ensuring safe structures should be scrutinized through the lens of CEQA project alternatives analysis, if you're designing a public infrastructure project. And again, not to harp on this, but Banning Ranch tells us that CEQA impacts include impacts to ecological, recreational, and visual values that are protected by the Coastal Act. So if the project results in such impacts, then you have to take a look at project design measures that can reduce those impacts. That could be nature-based solutions, but CEQA also says that an alternative can be eliminated if it fails to achieve the majority of the project's objectives or if it's infeasible.
0:21:19.8 LK: The law defines infeasibility to take into account a number of different considerations, including policy considerations, timing, technological constraints, as well as financial constraints. One project that I think might be of interest to folks joining us today that involves nature-based solutions is just getting off the ground in the city of San Diego. That's the De Anza Cove amendment to the Mission Bay Park Master Plan. And in that planning document, the city is considering expansion of wetland habitat as well as the development of an oyster reef as potential solutions to mitigate the impacts of sea level rise and increased tidal action on communities right by the coast there. So that is one to watch to see how the city handles the question of whether nature-based solutions are effective and how they should be implemented and under what circumstances.
0:22:16.0 MC: So is your point then that you would have an infeasibility analysis to go through and CEQA if you're not going to use the nature-based solutions?
0:22:24.4 LK: I would say so, and it's because, chiefly because of the point that Ben has already made, and that is the state is really favoring nature-based solutions to mitigate the effects of sea level rise.
0:22:38.9 MC: Okay. And there was a... Well, we've all heard in the press discussion of managed retreat, and there was some mention in your discussion, both Ben and Liz, about the idea of phasing. So given, the sort of ultimate managed retreat approach and this idea that nature-based solutions are favored, is the state essentially requiring relocation of coastal infrastructure? Or can you shore it up and keep it where it is?
0:23:10.0 LK: Well, I have some thoughts on this and I'm sure Ben does too. So we are certainly seeing situations where the state has required relocation of infrastructure and one example that predates even the current sea level rise guidance that the commission has put out is the Morro Bay Treatment Plant, where in that case the city initially proposed to renovate, retrofit the plant, rebuild it in its original location, which is on the coast in a low-lying area near where Morro Creek meets the Pacific Ocean. And the CDP was approved at the local level and then it was appealed. And on appeal, the commission granted the appeals and denied the CDP and listed a number of considerations, including the potential for flooding due to sea level rise.
0:24:01.0 LK: And so then the project came back in a new form and was proposed inland, essentially relocated. So we're seeing that happen up and down the coast. I'll just say that the commission's more recent critical infrastructure, sea level rise guidance, includes the concept of phased adaptation, which I think Mary Lynn is what you were alluding to with your question. And this concept recognizes relocation as an eventual solution once certain sea level rise triggers are met. And the concept of phased adaptation allows for less radical design and engineering solutions than just outright decommissioning and relocation. And this is accomplished through sequencing. So the initial phases could include hardening and elevation of certain project elements to mitigate the effects of sea level rise or flooding.
0:24:55.0 LK: Whether phased adaptation makes sense and how it should be implemented depends on the facts of each project. This approach could alleviate some of the hardship associated with Coastal Act compliance when retrofitting or upgrading existing infrastructure. It can also allow public agencies time to identify funding sources for the eventual relocation of aging infrastructure.
0:25:20.5 BR: Yeah, and on that front, when looking at the life of the infrastructure, that sort of tells you what the commission is going to say as far as, do you need to go to 2.7 feet for 2050? Do you need to go to 6.6 feet for 2080? Are they looking for, you know, 2100 and bond where it's, you know, 10.2 feet? So the adaptation you're looking at is going to depend upon the life of the infrastructure you're proposing. If it's existing infrastructure, its lifespan may not be until 2100, maybe less than that. And so the adaptation you have to do may not be as significant. Again, when talking about public projects, there is shoreline hardening that the commission will consider much more readily than with the private projects. And so there's that opportunity, but they do look at it. If you're looking at setting a new infrastructure, they are looking at sea level rise very aggressively. And when talking about things like state projects, you know, Caltrans projects, they're expecting the state to follow their H++ because it's a state number that they've come up with. And so it's, you know, when you're talking about, you know, transmission lines, maybe there's a little bit more leeway.
0:26:26.7 Speaker 2: Maybe you're trying to make an argument that the state itself will not make. And so those are sort of things to consider as well.
0:26:34.1 MC: In your opinion and knowing your coastal climate communities, do you think there may be a tipping point when some of these communities may support a voluntary managed retreat option for property owners, such as the bill proposed by Senator Ben Allen?
0:26:49.3 BR: Yeah, I think so for sure. The Allen Bill was an interesting idea to try to incentivize the managed retreat. The commission itself has gone away from managed retreat. It doesn't like that term anymore because it felt like it's got a negative connotation. So it's an adaptive strategy is what they talk about now. The Allen Bill, though, was looking at what they would do is they would actually acquire the property, pay fair market value for the property. Then the public agency, if it was a rentable location, would rent it out for what they thought was a safety life. And then when sea level rise impacts came, they would just let nature take its course.
0:27:29.3 BR: And so the Allen Bill didn't get out of the legislature, but it's something that's come up again and again. And I do anticipate that state resources will be necessary as well as federal that the shan't will talk about to utilize that going forward. Because when looking at environmental justice concerns, you can't have just the wealthy public take on all the responsibility or to allow them to adapt and not let the lower income residents have that same option. And so that's really where I see this. And not only will be the Allen Bill, I think it will be a preference for environmental justice communities where that will actually be the first in road.
0:28:12.9 MC: Which is an important topic that we need to also explore here because it's not just sea level rise policies that need to be taken into account. As we pointed out earlier, we really need to take into account environmental justice as well and designing and moving forward with infrastructure projects. So does the Coastal Act mandate that public agencies evaluate environmental justice when considering infrastructure projects? And if so, how does sea level rise factor into that? That sounds like a very complex analysis.
0:28:41.9 BR: It does both directly and indirectly. So there's an express requirement now. In 2016, the Coastal Act was amended to allow local agencies as well as the Commission on Appeal to consider environmental justice expressly. That wasn't in existence, but that doesn't mean environmental justice concerns weren't considered. There is a preference in the Coastal Act for low-income resources or affordable resources, recreational resources, and maintaining that. Public access is something that's very big. It's gone all the way to the US Supreme Court, mandating public access. When does that actually satisfy the Nollan-Dolan test? When does it not?
0:29:20.8 BR: So you always had these sort of public overall environmental justice concerns incorporated into it, but in 2016 it's now expressed. In addition to that, we now have the Commission has adopted an environmental justice policy in 2018. And so it's something that they look at with infrastructure projects. Again, that 2021 draft infrastructure guidance document puts heavily from that environmental justice document, and it's something it considers. So it is something that we do have to look at. And again, when you're talking about infrastructure projects funded by the state or actually taken on by the state, it's something that they are taking a particular notice of. So again, it's concerns the Commission will look at for sure. It's now one of the priorities, and so it's something you need to take into account when you're looking at your coastal approvals.
0:30:14.6 LK: I'll just jump in real quick and just add, it's not just the Coastal Act now, but state planning and zoning law includes considerations of environmental justice where certain jurisdictions that have environmental justice communities are required to develop an environmental justice element for inclusion in their general plan. So you might have local policies that you have to consider as you're planning your project on top of whatever is being mandated by the Coastal Commission.
0:30:41.4 MC: Can you give a quick example of how environmental justice gets raised essentially? Give us an example of an issue of an environmental justice issue in siting and planning infrastructure.
0:30:53.2 LK: Well, I think one obvious one I think that Ben has already mentioned is if you're impacting access to certain communities, to the beach, like low cost campgrounds or low cost hotels, that's one issue that comes up.
0:31:07.3 BR: Yeah, you have saltwater intrusion is now a big issue for water infrastructure and is that being taken care of? You have increased flooding events with tidal action as it moves inward. So when they're looking at improvements that are being made, they're making sure, is it actually applying to all the different jurisdictions? And again, this gets back to that Allen idea of providing incentives to make sure that you are doing not just coastal armoring, but replacement and improvement of an infrastructure to deal with that increased sea level rise. And that's that overlay the environmental justice where it's not impacting just roads, not impacting just rail. It's our water infrastructure as well. You have all these different aspects. Again, the things that the commission will look at to see is this actually an improvement or is this something that for the life of the project will actually result in it may be harm down the road.
0:32:03.0 MC: So you've talked a lot about the tools available to the commission to address EJ, environmental justice and sea level rise when reviewing infrastructure projects. If you could just give us kind of a bullet point list of those key mandates and policies, does it matter if it's a guideline or a policy and how do those get adopted? Maybe a bullet point list of what people need to consider when they're designing their infrastructure projects from a resiliency perspective.
0:32:29.9 BR: Yeah, I think you start with a state climate adaptation strategy. It's the guiding document for the state, and it's something that's used by the commission and the state lands commission. You also have the commission's 2021 Draft Critical Infrastructure, Sea-Level Rise Guidance Document. We've referred to that a couple of times. It's a draft document right now. It hasn't gone final. There was a comment period. Again, it hasn't gone final, so you can still submit comments. The commission's 2018 Sea-Level Rise Guidance Document again, built off that state climate adaptation strategy.
0:33:05.2 BR: The commission's 2019 environmental justice policy and a companion to that is the state lands commission's environmental justice policy. We had this year the commission's 2022 draft public trust guidance, and that gets into that mean high timeline and how does the commission believe private property rights interact with that mean high timeline, which is where they demarcate the public's access rights. And then finally, we have the Assembly Bill 2016, which added that environmental justice component to the Coastal Act itself. It also mandated a couple other things, required one of the governor's appointees to also be from an environmental justice community.
0:33:46.3 BR: So again, emphasize the environmental justice component of the Coastal Act. And as far as how do you get these guidance documents, how are they utilized? What the commission does is it uses its best available science when it makes these determinations. It's what it determines to be the best available science. There's been some pushback. We've talked about H++, that 10 foot and 2100 rule. There have been private projects are pushing back on that saying the best available science is actually something less than that. But again, when you're dealing with public infrastructure projects, things that are funded by the state or things that are actually built by the state, they are hand in hand with that H++ guidance document.
0:34:27.9 BR: And so that's what you're going to be utilizing. Private development, you try to make the arguments again. There have been local agencies that have pushed back on that when you deal with local coastal program amendments. Those have ended up really just the agencies have pulled back their amendments and they just haven't gone forward with those when there is pushback from the commission. Public projects, you've had people have that fight with commission and they've lost.
0:34:56.2 BR: Frankly, in California courts, there isn't, I think, a lot of success that we're going to see when that actually gets moved to the courts itself. We've seen now in the Endangered Species Act context where you have climate change being utilized for something where you have a vibrant population. But looking at climate change in the 100-year timeframe. The courts have said that that's acceptable. And you can use scenarios to come to that conclusion that there might be impacts to that species. Given that, I think the courts are going to be very deferential to the commission and its use of that H++ scenario.
0:35:33.9 BR: So that's why you got to really pay attention to, what does the LCP itself say? And is there a way to utilize that to try to avoid that type of impact if you're talking about a private development public? I think you're most likely stuck with that H++.
0:35:52.0 MC: Thank you, Ben, for that great summary because I want to make sure we get to the topic of the types of federal funding programs available to address these climate change resiliency and environmental justice features particularly. And then a little bit of an overview as to what will be required of projects and who's eligible to receive the funding. I know it's been expanded, but I don't know how. And so it would be great if you could weigh in on that. Shant?
0:36:22.1 SB: Absolutely, Mary Lynn, thank you. At the very highest level, there's basically two different types of buckets of funding available from the federal government related to this issue. The first is funding for resilient infrastructure specifically or infrastructure that will indirectly improve resiliency, even if the infrastructure itself is not technically resilient infrastructure. And that type of funding is generally distributed via direct funding. I'm happy to get into more details with regards to certain specific programs that might fall into this category. But the other category of funding, and this we really saw under the Inflation Reduction Act, which I'll talk about in a second, is funding specifically for the purpose of reducing emissions, greenhouse gas emissions specifically, but also improving transportation efficiency.
0:37:11.2 SB: And by doing that, you are specifically looking at funding for reducing emissions from the transportation sector. It's one of the highest emitting sectors in the economy. And so Congress really looked at providing for the first time, both direct funding for this purpose, as well as a couple dozen different types of tax credits, specifically to incentivize clean energy production and transmission, as well as adoption of electric vehicles. Again, all for the purpose of specifically trying to reduce GHG emissions and GHG emissions from the transportation sector.
0:37:47.8 MC: So what are some specific pieces of legislation in these two categories that provide funding and what's their current status in terms of implementation?
0:37:57.0 SB: Sure. So the first is the Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Law. This was enacted just over a year ago in November of 2021. This was the big infrastructure legislation that Congress and the President have been working together on for years. It provided in total over a trillion dollars in direct federal funding for fiscal years 2022 through 2026. Now, it was a unique piece of legislation. We're not going to get into all the details, but roughly half of that, $1.2 trillion was actually in the form of a one time direct appropriation. So the moment it was enacted, roughly half of that, $560 odd billion was available immediately for the federal government to distribute. The remainder of that was spread across the five fiscal years that are subject to the authorization of this bill.
0:38:48.4 SB: And to date, about a year in, the federal government has obligated about $180 billion. So it's a lot of money in the first year of enactment of this legislation that's gone out the door for a variety of purposes, including those that we're talking about today. The second main piece of legislation is the Inflation Reduction Act. This was enacted in August of this year. It provides about $370 billion specifically towards federal programs that will reduce greenhouse gas emissions like those that I mentioned. Because it's just been enacted earlier this year, implementation is fairly early on. None of the funding has started to flow yet, but the implementing agencies across the federal government have conducted and are continuing to conduct several listening sessions. But to date, there's no formal guidance or funding that have been released yet. So still early in implementation, but obviously an important piece of legislation specifically for the specific purpose of addressing climate change.
0:39:45.9 SB: And so the final just general note that I want to make, though, on this topic is that, in the wake of climate emergencies, natural disasters like floods or fires or other things that we're all too familiar with, it's typical that Congress will pass a supplemental appropriations bill specifically designed to address and remedy the harm from that natural disaster. And over the last several years, Congress has taken more and more of an emphasis in these supplemental appropriations bills to really focus on resilient infrastructure, essentially under the rationale that we don't want to just rebuild something that just flooded so that it can flood again next year. But really to think about how to build things in a way that will withstand climate change, and also site the facilities and locations like we've been talking about, where they will not be as subject to the impacts of climate change.
0:40:41.4 MC: It may be too early to know, Shant, but are you seeing any of this idea of being able to phase in more natural solutions in the context of responding to these emergencies?
0:40:54.0 SB: Yeah, absolutely, from a federal perspective, that issue has been most prevalent when you're looking at flood control and levies and other types of projects that the US Army Corps of Engineers sponsors or provides funding for. But really under the IIJA, the bipartisan infrastructure law, we're actually starting to see more emphasis on natural infrastructure in this regime.
0:41:18.8 MC: And is phasing okay or do they want to see the natural infrastructure right now?
0:41:23.3 SB: As long as it's part of the project plan, it doesn't have to be implemented immediately. But to be eligible for some of these funding, you would need to demonstrate that the project would include these elements.
0:41:35.8 MC: Excellent. Thank you. I'm going to shift gears in a moment, but I also want to ask this one question of the panel and probably primarily Liz and Ben before we move on. And that is, have you seen any requirements or preferences to use certain sea level rise modeling systems? They can all be very different. And COSMOS seems to be the standard so far. I'm sure that that's lovingly known as COSMOS. What do you know about sea level rise models and what is preferred?
0:42:06.1 BR: It depends upon the consultant you go to for these projects. Again, it also for the private development, you have some who want to push back on these models. They have their own that they prefer. There's NOAA Sea Level Rise, our COSTAR Future has a model that's used for that H++. COSMOS is another one. From the public side and from the private side, I haven't seen them agree that this is the one model you should use. And that's not surprising.
0:42:38.0 LK: Yeah, and this is really something that's slightly outside of our wheelhouse. You should work with your technical consultant and of course, they will have a recommendation for what's optimal for your project. Also, keep in mind your audience, who you're developing the data for. If it's the commission, you want to go with something the commission will have a chance of accepting.
0:43:00.5 MC: So let's take a little bit of a diversion here and talk for a moment about rail. And for a moment, Liz and Ben, can you tell us a little bit about rail and whether the state has the authority to condition rail projects to address sea level rise and EJ impacts and to implement the guidance we've been talking about today?
0:43:18.7 LK: Well, I'll just jump in here. And this is the answer that lawyers love to give. And the answer is it depends on the conditioning question. So under the Interstate Commerce Commission Termination Act, or when we love when we call ICCTA, the surface transportation board jurisdiction of rail project preempts local regulation of transportation by rail and ICCTA applies to rail carriers and entities that operate under the auspices of a rail carrier.
0:43:49.2 LK: That being said, about local regulation, it's a preemption is not absolute. So if the local condition does not unreasonably burden transportation by rail, it can be allowed to stand and in fact the surface transportation board has upheld local regulations and conditions that have only an incidental effect on rail transport. And you can see some of some examples in prior decisions of the surface transportation board, but in a some I can just reference now our conditions requiring the sharing of information with local jurisdictions about the project and interagency coordination. Even if federal preemption applies, it's important to remember that the Coastal Commission unusually has concurrent jurisdiction under federal law to ensure consistency with our state's coastal program under another federal statute, the Coastal Zone Management Act.
0:44:41.8 LK: So if your project requires a federal license or is a federal project that impacts the coastal zone then you'll need a consistency determination or consistency certification from the commission so you might be seeing some of the sea level rise and environmental justice considerations come to the fore through that channel. And in California, as I'm sure a lot of you are already aware, the California Supreme Court has severely limited the scope of federal preemption, as it to state agencies and to agencies that can be categorized as arms of the state.
0:45:19.3 LK: Friends of the Eel River v. North Coast Railroad Authority case, that's several years old now. The Supreme Court developed what is called a self-governance exception for CEQA to ICCTA, pardon all the acronyms. The court explained that ICCTA allows private rail carriers to have their own internal corporate policies and the court analogized CEQA to such a policy when it comes to the state. So a similar argument could be made about the Coastal Act. The court reaffirmed the self-governance exception earlier this year, again, in the County of Butte, the Department of Water Resources case, that one involved question of whether CEQA is preempted by a different federal statute, the Federal Power Act, which actually has a very clear statement of federal preemption.
0:46:04.9 LK: And the court found that CEQA, the exception to federal preemption operates with respect to the state project, that the state can implement its CEQA policies to inform its own decision-making. Also as a practical matter, if your project requires a state approval or if it's a state project, you're going to want to uphold that and give effect to the state's policies and laws intended to ensure climate resiliency and avoid impacts to environmental justice communities.
0:46:36.2 MC: That makes sense. And I do think it does apply equally, as you noted, to projects that, for example, might be conducted for water projects that might have a FERC-regulated dam. There are potential for preemption, but FERC itself, and the case law upholds this, really views its role as being one that would coordinate and allow implementation of all state and federal laws and policies. And so they will be very reluctant to preempt environmental requirements, particularly those in the Coastal Act. And then in addition, that you do have the federal hook through the Coastal Zone, as well as the state's ability to use CEQA to inform outcomes. So a very similar situation for water infrastructure. There is some preemption there, but probably not useful in terms of designing and moving forward with projects. I think let's take a minute and hear from Shant again about particular resilient infrastructure funding programs.
0:47:41.9 SB: Yeah, absolutely. I'll run through this fairly quickly. Obviously, and this goes for any question, we're all available to be contacted if you want to follow up on any of these issues. But in general, and I apologize for those listening in who are from a private entity or have a more private development-related interest, because typically for federal funding, the opportunities are going to run to those public agencies, like a state or local governmental entity, a metropolitan planning organization, tribe. Those are the typical types of entities that are eligible to apply for federal funds.
0:48:15.0 SB: Private entities are usually not eligible to apply on their own, but often can in partnership along with an eligible public recipient. So just one thing to keep in mind. The four particular programs that I just want to run through really briefly. The first is the PROTECT grant program. This is otherwise known as the Promoting Resilient Operations for Transformative, Efficient, and Cost-Saving Transportation. It's a wonderful name. A lot of thought went into that. This is under the IIJA, a new program that is roughly $9 billion in total funding, but about $7 billion of that is distributed and allocated by formula program to state DOTs.
0:48:58.4 SB: The remainder is a competitively available program that is administered by the Federal Highway Administration. And specifically, under this program, eligible projects include natural infrastructure, as well as highways, transit, inner city passenger rail, port infrastructure, and other types of coastal infrastructure. So that is one federal funding stream that's very relevant to what we've been discussing. The other one, I should say another one, is the RAISE program that I mentioned earlier. This is the Rebuilding American Infrastructure with Sustainability and Equity program. This is administered by the Secretary's Office at the US Department of Transportation, also authorized under the IIJA, although this is now the third name for the program that was originally the TIGER program created under the Recovery Act in 2009.
0:49:45.2 SB: It's a competitive grant program with very broad eligibility, including projects which "strengthen infrastructure resilience to all hazards, including climate change." So again, very, very broad. If you can kind of connect it to that overall climate change hook, then chances are you can look to this program for federal funding. Again, it's competitive. A lot of funding is available. Whether or not it's actually enough and whether or not it's accessible is a separate issue.
0:50:14.7 SB: The Clean Ports program, this is a new program under the Inflation Reduction Act that provides $3 billion specifically to fund zero emission port equipment and technology, and to help ports develop climate action plans to reduce air pollutants. The final program is a little bit smaller. It's $100 million annually. And this is the Emergency Relief Program administered by FHWA, the Federal Highway Administration, specifically on using resilient infrastructure to rebuild in the wake of emergencies. And so, this is specific to highway infrastructure, but nonetheless relevant to the discussion we've had today.
0:50:53.0 MC: What are the plans to preserve our coastline with the rise of sea level?
0:50:58.1 LK: That's an excellent question. And I think that many of us have already touched on this. The key, the blueprint for the plan is the climate adaptation strategy as well as the executive order that was mentioned earlier in the hour, Executive Order N-82-20, which recognizes that we might lose, I think, Mary Lynn quoted 30% to 60% of our beaches in Southern California. So, those are the overarching mandates. You will see that efforts to save or address the impacts of sea level rise on our beaches are being implemented at the local level. So jurisdiction by jurisdiction, you're looking at local coastal programs that have policies intended to mitigate loss of public beaches. And of course, the sea level rise policy that was mentioned earlier that the commission has put out includes model policies aimed at this particular problem.
0:51:56.9 BR: And just to add on that, there's the Commission's Public Trust Guidance document, which it issued earlier this year, which again, it's interpretation as the mean high tide line moves forward, so as we lose our public beaches, and that mean high tide line creeps towards what was previously private property, there's an interpretation that that private property is transmuted into new public beach. So, that is going to be a big fight in California as our coast, what is private property, what is a public beach, and how does that mean high tide line and sea level rise determine that?
0:52:33.9 MC: Long been an issue under our Coastal Act. So, for major public infrastructure projects near the coastal shoreline where sea level rises may be putting these facilities at risk, what green/gray and green solutions do you think that are actually feasible is the Coastal Commission favoring at this time? What are you seeing in practice?
0:52:54.3 LK: Well, I think the Commission wants to see a retreat, frankly. So, if you're charting a project's life, which just goes out to 2100 or beyond that, and the Commission's modeling shows that the facility will be impacted by sea level rise or in that timeframe, they really want you to redesign it and move it away from the area of impact.
0:53:16.6 MC: You mentioned a few examples, Liz, but I guess you don't have feedback on those yet. You mentioned the oyster beds and...
0:53:23.0 LK: Yeah, we don't have feedback and expanding wetlands, they work as a sponge, right? That's the idea. I think that's something that the state has put its weight behind. So it's a measure that might be favored by the Commission as well on a particular project. Oyster beds, right? Calc beds. Those are specifically mentioned in the climate adaptation strategy. I haven't personally seen those implemented on a project, but it's a potential measure to investigate.
0:53:55.1 MC: Okay.
0:53:55.2 BR: And again, I think it depends upon the life of the project you're talking about. Calc beds, those types of things probably aren't going to be able to handle a 10 plus increase in sea level rise.
0:54:05.5 MC: Right, right.
0:54:06.2 BR: So those are more tidle action stuff. So, it might get you to, hopefully it gets you to 2080, possibly not even that, maybe that's more of a 2050-type of thing. And then you are looking at relocation or raising or something else. So, it's very project dependent as to what the Commission will consider and you need to be able to demonstrate that green or green-gray mediation measure would actually accommodate all the potential sea level rise impacts associated with it.
0:54:37.7 MC: How about from your perspective, Shant, are you seeing something that the Feds like to fund in terms of these kinds of resiliency features?
0:54:46.8 SB: A lot of the funding programs that are eligible specifically for this type of infrastructure are very new, like a year or less old. And so, I don't think we have enough information yet to extrapolate any specific type of preference. The one thing that I will just come back to is, I think for federal funding purposes, understanding the goals of the administration to reduce the impact on the climate and to respond directly to climate change through the development that you're doing is the key. And so, if you can hit that and describe in a compelling way, how your project is actually going to address those impacts and be constructed and designed in a way that shows that you have thoughtfully planned about the impacts to disadvantaged communities and the resilience of the project, I think that is really what the federal government is looking for specifically.
0:55:44.6 MC: I think it's been a tremendous pleasure to get to talk with you guys about the projects you're working on and to share with you what we're seeing in terms of resiliency policies and their implementation in California.
0:55:57.2 MC: Thank you to our listeners for joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental and land use matters, please visit our website at Nossaman.com. And don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts so that you don't miss an episode. Until next time.
0:56:22.8 S2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or re-broadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.
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