Spotlight on Emerging Environmental Risks for the San Francisco Bay

This week Bay Planning Coalition held a sold out Expert Briefing event on Emerging Environmental Risks for the San Francisco Bay Area. (The agenda and presentation slides are available here.)
Below is a recap of the topics addressed by the three expert panelists:

  • Robert Battalio, Environmental Science Associates
  • Scott B. Birkey, Cox, Castle & Nicholson LLP
  • Ed Morales, Marsh Risk & Insurance Services
    There are a wide range of projections regarding sea level rise on the California coast over the next 100 years. Projections used for a recent Los Angeles project that Environmental Science Associates was involved in estimated that, by 2100, sea level will rise between three and almost 9.5 feet. The State of California is expected to release some official projections later this spring.
    Marsh edge erosion. As the sea level rises, there will be natural erosion of marshes and other waterfront habitats. There is already some effort in the region to provide additional protection for these areas, including construction of seawalls and levees and landward realignment of levees, but more will need to be done.
    Risks to contaminated and industrial sites. A map of open and closed cleanup sites in the Bay Area (see presentation slides) shows how vulnerable many of them are to the effects of rising tides. Considerations for determining the threat of contamination being spread as a result include the proximity of the contaminated materials to the soil surface, the mobility of the contaminated material when in water, and the toxicity it has to aquatic life. Many of the region’s industrial sites like landfills, sewer system infrastructure, and industrial plants are also located very near the shoreline. Landfills in particular will be subject to wash out erosion as the sea level rises. Mitigation and preparation will be critical in the coming decades and only some companies are already working on this.
    Considering the wide range of risks that sea level rise poses, what can be done to address them? In addition to facing the physical and ecological issues, how are we dealing with the legal and regulatory issues?
    Permitting and regulatory controls. Key regulatory language regarding regional sea level rise planning and mitigation as it relates to the permitting process comes from: the Bay Conservation and Development Commission’s (BCDC) San Francisco Bay Plan (as amended October 2011), Sea Level Rise Policies, and Policies for a Rising Bay Project Final Report (November 1, 2016);  the U.S. Army Corps of Engineers (USACE) Nationwide Permit 54, Living Shorelines (effective as of March 19, 2017); and the State Water Resources Control Board’s Resolution on Comprehensive Response to Climate Change (March 7, 2017).
    Liability. Managing liabilities from contaminated or industrial sites as they are affected by sea level rise will be an increasingly important issue. Contamination from remedial sites, landfills, waste water treatment plants and industrial facilities can lead to various third party claims, including for clean up, property damage, natural resource damage, and even bodily injury.
    Insurance solution. It turns out that there is an insurance solution for this type of “pollution legal liability”. Pollution legal liability policies provide coverage for clean up costs, government re-openers, third party torts (e.g. bodily injury), natural resource damage and defense costs. They cover unknown and known pre-existing contamination as well as new pollution events.
    Of course there are a lot of questions about how Donald Trump’s administration will address sea level rise and the environmental permit process In general. President Trump has already signed a number of related executive orders, including the infamous “Waters of the United States” (WOTUS) Rule.
    WOTUS executive order. President Trump signed an executive order on February 28, 2017 entitled, “Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” This is likely in response to a proposed rule by the U.S. Environmental Protection Agency (EPA) and USACE that would greatly expand these agencies’ jurisdiction over water and land use to include things there were not part of it before, such as storm drain systems, seasonal flows, and even construction ponds; based on the idea that there is a nexus between these sites and the “navigable waters” under their current jurisdiction. The new executive order requires, in part, review for consistency with policies to promote economic growth and minimize regulatory uncertainty. It also requires the EPA and USACE to “consider” interpreting the term “navigable waters” in light of an opinion by Justice Scalia in Rapanos v. United States (read: by applying a stricter definition).
    How state agencies might react. As the expansion of EPA and USACE jurisdiction in this area is slowed (if not halted), there is a regulatory “gap” that state agencies may fill. This is already happening at the State Water Resources Control Board, which has a reinvigorated wetland protection policy called, “Procedures for Discharges of Dredged or Fill Material to Waters of the State.”
    This is clearly a topic that will be developing, and Bay Planning Coalition plans to continue to monitor it and convene its members and key experts around it. If you would like to stay updated on our work in this area and our upcoming events, please be sure to subscribe to our newsletter.

    The Bay Planning Coalition is a non-profit organization well known for its advocacy and credibility in the San Francisco Bay Area corporate and environmental community. When we speak about an issue, legislators and regulators listen.” – John A. Coleman CEO