Tuesday, June 14, 2016

Contemporary Issues in Climate Change Law & Policy, Part 3: Thinking Ecosystems, Providing Water: The Water Infrastructure Imperative, by Keith Hirokawa & Jonathan Rosenbloom

Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy:  Essays Inspired by the IPCC.  The book was co-edited by Robin Kundis Craig (Utah) and me.  The posts will progress in the order of the book's chapters.  This third post is an excerpt from Profs. Keith Hirokawa and Jonathan Rosenbloom's chapter, "Thinking Ecosystems, Providing Water:  The Water Infrastructure Imperative."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.



III. Greening the Gray: Climate Preparedness through Ecosystem Services Implementation

In this final part, we begin what we hope is a sustained dialog about where and how ecosystem services can be implemented at the local level to help provide water-based services. The areas of focus and the examples below are meant to illustrate the benefits of ecosystem services planning. They also showcase opportunities where cities and communities are investing in ecosystem functionality to ensure that ecosystems performing at a fraction of the cost of built infrastructure while illustrating that implementing ecosystem services at the local level can occur in many ways, from broad-based approaches (such as “low impact development” practices described in Section A) to specific ordinances (such as mitigation of urban forest losses set forth in Section B) [Sections A and B available in full text version at link above]. In addition, ecosystem services may apply to diverse and core local legal instruments, including comprehensive plans, zoning and building codes, and water distribution regulations.

  1. Low Impact Development

One example of green infrastructure for reducing stormwater impacts has been “low impact development” (LID) practices. LID generally refers to conservation-based land use strategies that minimize impervious surfaces and emphasize the use of natural features and native vegetation as stormwater control tools. Common implementation programs include reduction of lot sizes and parking lot sizes while maintaining overall density (and preserving open space), rooftop capture of stormwater, downspout disconnection, adjusting curb design to capture instead of transport stormwater in vegetated swales, replacing impervious surfaces with permeable surfaces, and increasing vegetation on development sites. Common targets for these practices are parking lots, roads and driveways, street curbs, rooftops and residential and commercial developments. In recent decades, many communities and municipalities have implemented LID practices to control stormwater flows and improve water quality, especially in communities suffering the challenges of combined sewer overflows (CSO).

A study commissioned by Pierce County, Washington, illustrates some potential LID practices in local residential subdivisions. The consultant was directed to evaluate the costs and benefits of implementing green infrastructure solutions to the stormwater impacts caused by new development. The report analyzed a typical lot size, but on atypical developments that incorporated LID practices. The report described the following:

[T]he LID design attempts to reduce the severity of the changes in the landscape thereby reducing the change in the hydrology from the predeveloped state. Mitigation for changes in the landscape are completed as close to the source of runoff as possible with nonstructural [best management practices] such as swales, bioretention areas, and open spaces. If designed correctly and allowed to function without encroachment from incompatible uses these stormwater treatments should function much more like natural systems thereby meeting the goal of maintaining the predeveloped hydrology of the site.[1]

The report identified significant benefits from the use of green infrastructure techniques and provided support for the notion that green infrastructure can facilitate stormwater infiltration at volumes closer to natural and background levels of stormwater control. These designs also incorporate air and water filtration through the protection of vegetation and wetlands, reductions to habitat impacts, and reduced peak flows through groundwater infiltration. Interestingly, the report also identified “non-quantified benefits,” which included a reduction in automobile traffic as a result of the creation of a more walkable neighborhood, as well as environmental literacy benefits by including residents in the water quality process.[2]

The approach set forth in the Pierce County Report exemplifies the initiatives taken by local governments across the nation to infuse infrastructure planning with ecosystem concepts. New York City, for example, has committed roughly $2.4 billion to green infrastructure practices over the next 18 years to integrate green roofs and streets, bioswales, and other natural systems to manage stormwater. This approach is intended to reduce the amount of “contaminant-latent water” flowing into the waterways. The City of Philadelphia has committed $1.2 billion to green infrastructure over the next 25 years to manage stormwater, including the conversion of 9,600 impervious acres into permeable surfaces. Washington, D.C., has proposed nearly $60 million in green infrastructure along its Rock Creek waterway and another $30 million along the Potomac River. These projects will capture pollutants and retain stormwater to prevent flooding, while providing green space and recreational opportunities. Portland, Oregon, has launched a campaign to promote rooftop rainwater capture, downspout disconnection, curb cuts to feed runoff water into bioswales, and permeable road surfaces to complement Oregon’s smart growth system.

These examples of LID practices implement an ecosystem services approach by using natural processes to control and mitigate stormwater flows. As a component of the local land use regulatory process, LID practices integrate resiliency by improving the natural environment and the dependency on gray, temporary solutions.

  1. Urban Forests as Water Infrastructure

In addition to LID practices, cities are looking to forests to help ensure the provision of water-based services. From the forestry perspective, urban forests are relevant to an ecosystem services analysis because urban trees are engaged where people live, work, and play. From the infrastructure perspective, urban forests are relevant because of the critical and essential services they provide.[3] The shade offered by urban trees results in lower climate control costs. Trees capture air pollutants, provide shelter and food for urban critters, and even contribute community assets such as neighborhood attractiveness and property values.  For our purposes here, urban forests also provide substantial stormwater control services by retaining soils and by capturing and filtering stormwater, resulting in cleaner water and reducing flood flows. Urban forests illustrate the importance of ecosystem function and transform our understanding of nature “from amenity to living technology.”[4]

Some local governments protect these values by requiring tree removal applications, imposing stringent tree replacement requirements, and mandating the planting of native species.[5] Other cities incorporate urban forest resources throughout their land use planning scheme because of the significant economic benefits they accrue as infrastructure. For instance, the City of Vancouver, Washington, has noted in its comprehensive plan that, “unlike traditional grey infrastructure capital improvements, such as transportation and water systems, which begin to depreciate as soon as they are installed, green infrastructure accrues value and provides greater services as time passes.”[6] As part of its comprehensive plan, the City of Vancouver has been active in protecting its urban forest resources for some time. Currently, urban forestry is included as part of the city’s compliance with state stormwater control requirements. To protect the benefits of urban trees, the City of Vancouver has created an urban forestry commission,[7] adopted regulations to protect street trees,[8] and regulated clearing in priority habitat areas to maintain “habitat function and value.”[9] In its tree conservation ordinance, Vancouver also regulates the destruction or removal of “any tree” without an approved tree plan.[10] Development applicants under this program are required to preserve any tree that could be protected by selection of a “feasible and prudent location alternatives on-site” for the project.[11] Development applicants must also demonstrate meeting the minimum 30 tree units per acre for most projects.[12]

Vancouver estimates that its tree canopy captures enough stormwater to save $12.9 million in avoided construction costs for stormwater retention structures and $78.3 million in air pollutant removal services. Vancouver estimates an annual net benefit per tree of $1 to $8 for small trees, $19 to $25 for medium-sized trees, and $48 to $53 for large trees. Vancouver has stated:

Improving aesthetics of our community has tangible economic benefits. Systems of open space and bike trails give a community a reputation for being a good place to live and visit. Increased recreational and community activity attracts new businesses and stimulates tourism. Well-maintained trees improve residential “curb appeal” and increase potential buyers’ willingness to pay a 3–7% premium for property. Trees in retail settings increase shoppers’ willingness to pay for goods and services by 12%.[13]

            Tree protection programs similar to Vancouver’s stand apart from conventional water infrastructure wisdom. Without pipes and dams to measure, urban forestry programs break free of preferences for the built environment. Yet tree protection programs typically provide added societal benefits and critical functions needed in water infrastructure at a substantially decreased cost and with a longer lifespan.

  1. City Creation and Infrastructure Planning

A third example of innovative, ecosystem-based infrastructure planning is illustrated in the City of Damascus, Oregon. When Damascus was drawn into the Portland Urban Growth Boundary in 2002, public infrastructure served only 10% of its area.[14] Damascus subsequently incorporated and took on significant infrastructure responsibilities.[15] The cost for constructing built infrastructure and public services was estimated at $3 to $4 billion.[16] In the process of developing a comprehensive land use plan and an ecosystem services master plan,[17] the City prioritized ecosystem services as a component of its utility infrastructure and stormwater management “to forestall increased costs to the citizens of Damascus. These increased costs take the form of built infrastructure to replace the service (as in stormwater management), increased regulatory compliance hurdles (as in Clean Water Act and Endangered Species Act compliance), and loss of quality of life.”[18] The City prepared a public facilities plan that mapped the existing ecosystem services to develop “relative level of service (LOS)” that incorporated the location and quality of the ecosystem services.[19] With input from service providers and the public, Damascus developed an Integrated Water Resource Management Plan (IWRMP) “to establish an integrated, cost-effective, and sustainable approach for providing water, wastewater, reclaimed water, and stormwater services to new and existing development in the City.”[20]

The City of Damascus has not completed its infrastructure, and in likelihood, the road ahead will be complicated. In the summer of 2015, the City was presented with an infrastructure white paper that detailed an accounting of the needs and assets required to maintain an effective water infrastructure. The white paper referred to the City’s ecosystem services obligations in its capital facilities plan.[21] It relied on the capital facilities plan map previously produced that located gray infrastructure based in part on minimizing interruption of ecosystem services. On the other hand, the City has not yet adopted the LID concepts that were intended to govern new development and integrate ecosystem services ideas. Even worse, the white paper does not illustrate the importance of ecosystem services in the accounting for infrastructure needs. Rather, the white paper provides a needs assessment for new pipes and culverts, roads, and treatment facilities.[22]

The example of Damascus is interesting from a resiliency planning standpoint because of the breadth of the challenge: because Damascus’ water infrastructure was, in a sense, starting “from scratch,” it was not bound to conventional formulae and engineering preferences. Under these circumstances, the idea of accounting for ecosystem services and ecosystem vulnerabilities as a launching point for infrastructure planning is a great experiment. In the climate change era, many, if not most, cities will undergo transformation and will bear the burden of reinvention as climatic changes are more extreme and vulnerabilities become more pronounced. Cities will have opportunities to rebuild.


[1] Pierce County, Pierce County Low Impact Development Study 38–39 (Apr. 11, 2001), available at http://www.co.pierce.wa.us/archives/150/LID%20Report%20final%20complete.pdf.

[2] Id. at 39.

[3] Trees in urban areas “soothe eyes and spirits, they shade, they form special places for recreation or relaxation, they provide habitat for birds and other wildlife, they purify the air, and they increase the market value of real estate.” Henry W.  Lawrence, The Neoclassical Origins of Modern Urban Forests, 37 Forest & Conservation Hist. 26, 35 (1993).

[4] E. Gregory McPherson, Accounting for Benefits and Costs of Urban Greenspace, 22 Landscape & Urb. Plan. 41, 41 (1992).

[5] For instance, the Township of Jackson, New Jersey, has declared that its trees are “important cultural, ecological, scenic and economic resources” and regulates land uses to preserve tree canopy, biomass production, air filtering and oxygen production. Jackson, N.J., Admin. Code §100:A (2003). Applications must be accompanied by a reforestation plan and may be denied where the proposed activity indicates “any negative effect upon ground and surface water quality, specimen trees, soil erosion, dust, reusability of land, and impact on adjacent properties.” Id.; see also New Jersey Shore Builders Association. v. Township of Jackson, 970 A.2d 992 (N.J. 2009) (in which the New Jersey Supreme Court upheld the Jackson Ordinance).

[6] City of Vancouver, Vancouver Urban Forestry Management Plan 7 (Dec. 2007), available at http://www.cityofvancouver.us/parksrecreation/parks_trails/urban_forestry/pdf/UFMP_final-web.pdf. See also Vancouver Watersheds Alliance, Report of 2014 Activities by the Vancouver Watersheds Alliance Supporting Vancouver’s NPDES Phase II Permit (2014), available at http://www.cityofvancouver.us/sites/default/files/fileattachments/public_works/page/1125/5c_vwa2014annualreport.pdf.

[7] The purpose of the Urban Forestry Commission for “managing, conserving and enhancing the existing trees located in the parks and public areas owned by the city of Vancouver and in public right-of-way, and thereby enhancing the appearance of the city and protecting an important environmental and economic resource. . . .”  Vancouver, Wash. Mun. Code 12.02.010 (2009).

[8] Vancouver, Wash. Mun. Code 12.04 (2006).

[9] Vancouver, Wash. Mun. Code 20.740.110 (2009).

[10] Vancouver, Wash. Mun. Code 20.770.020.A (2004).

[11] Vancouver, Wash. Mun. Code 20.770.070.B.1 (2004).

[12] Vancouver, Wash. Mun. Code 20.770.080 (2007).

[13] City of Vancouver, supra note 36, at 9. In the Vancouver Municipal Code, the City declares that trees are protecting and valuable for the following functions: 1. Increasing the air quality with the absorption of air pollutants, assimilation of carbon dioxide and generation of oxygen, and with the reduction of excessive noise and mental and physical damage related to noise pollution; 2. Minimizing the adverse impacts of land disturbing activities and impervious surfaces on runoff, soil erosion, land instability, sedimentation and pollution of waterways, thus, minimizing the public and private costs for stormwater control/treatment and utility maintenance; 3. Cost-effective protection against severe weather conditions with cooling effects in the summer months and insulating effects in winter; 4. Providing habitat, cover, food supply and corridors for a diversity of fish and wildlife; and 5. Economic support of local property values and contribution to the region’s natural beauty and enhancing the aesthetic character of the community. Vancouver, Wash. Mun. Code 20.770.010 (2004).

[14] Anita Yap et al., Ecosystem Services & City Planning: The City of Damascus Develops a Model Approach to Public Facilities Planning, Or. Insider 1, 4 (Aug. 2009), on file with the authors.

[15] Id. at 1.

[16] Id.

[17] Id. at 3, 9.

[18] Work Session, City of Damascus City Council, Ecosystem Services – Executive Summary from the Tier II Ecosystem Services Report ES-1 (2010), on file with the authors.

[19] Id.

[20] CH2MHILL, Damascus Integrated Water Resources Management Plan ES-1 (2011), available at http://ci.damascus.or.us/References/Misc/Draft_Damascus_IWRMP_07062011.pdf.

[21] The white paper notes, “In addition to the traditional public facilities, the plan also took into consideration ecosystem services, which are the unique and irreplaceable service provided by the existing natural resources such as air and water quality, stormwater management, erosion control, and fish and wildlife habitat.” Infrastructure White Paper, City of Damascus 3-4 (June 22, 2015), http://www.damascusoregon.gov/AgendaCenter/ViewFile/Agenda/06252015-397.

[22] Id. at 6–11.



Links to previous excerpts in this series are below:

Part 1:  Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report, by Robin Kundis Craig

Part 2:  Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach


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