Posts

The Fate of Supplemental Environmental Projects: Hanging in the Balance

Turtles in waterfront habitat

What is a Supplement Environmental Project (SEP) and How Does it Work?

A Supplemental Environmental Project (SEP) is a federal mechanism used to facilitate settlement of an environmental enforcement action. It allows a polluter to voluntarily take action in place of paying a fine. The business or individual undertakes a project that provides “tangible environmental or public health benefits to the affected community or environment, that is closely related to the violation being resolved, but goes beyond what is required under federal, state or local laws.”

Interestingly, for every dollar the business spends, their fine is only reduced by 80 percent. This means that an SEP costs a company more. If a fine is $1 million, for example, a company could pay $1 million on a habitat restoration project and still owe $200,000 in fines. In spite of the higher cost of implementing an SEP, companies prefer them for the benefits they could achieve: a beneficial restoration for the community, and goodwill for the company.

A Guidance Change Halts Most SEPs

However, in early 2020 the Department of Justice issued guidance saying that they could (for the most part) no longer support this approach. Their stance is that while enforcement of laws is a function of the executive branch, that branch can’t choose how to appropriate federal funds. Instead, the fine must be deposited in the Treasury so that Congress can decide how to appropriate those dollars under its constitutional authority.

What Now?

The guidance doesn’t apply retroactively, and so previously negotiated SEPs shouldn’t be affected.

Given that the 2020 guidance is relatively recent, there is still uncertainty about how it will play out, and a change in administration may affect the future of SEPs.

More information on SEPs

Information about our environmental services

Questions? Contact Mark Dagel, LHG

Marshy habitat

Increase Your Points Toward LEED Certification

Federal Center South

Federal Center South, the most energy-efficient office building in the Pacific Northwest, may achieve LEED Platinum. Energy Piles, recycled wood and construction debris, and stormwater infiltration galleries contributed LEED points.

Most LEED points come from efficiency in design and construction areas such as energy, water, materials, and indoor environmental quality. That’s why it may not be obvious how geotechnical engineers and environmental scientists contribute to LEED certification. Since LEED Silver is a requirement for most new public buildings, with LEED Gold the new normal, owners need every possible point. Here are several avenues to gain more:

Sustainable Sites – Several credits are available, including Brownfield Redevelopment (Credit 3); Protect and Restore Habitat, including green roofs (Credit 5.1); and Stormwater Design, including infiltration, reuse, pervious paving, swales, and other LID solutions (Credits 6.1 and 6.2).

Water Efficiency – Credits are typically based on the percentage of reduction in the use of potable water for the new development. Water-efficient landscaping, reuse of rainwater, and capture and reuse of groundwater in the irrigation or building systems can cut water use by 20% or more. Designing efficient filters for graywater recycling can lead to additional points.

Energy and Atmosphere – Credit 2 (On-Site Renewable Energy) allows as many as 3 credits for generating up to 7.5% of the building’s power usage on site. Properly designed ground source heat pump geothermal systems will achieve this goal and these points.

Materials and Resources – Again, several credits are available: Credit 2.1 Construction Waste Management (diverting demolition debris from landfills or incinerators), Credit 3.2 Materials Reuse (reusing salvaged building materials like foundation piles), Credit 4 Recycled Content (using materials such as ground down tires or recycled glass for backfill).

Innovation & Design Process – New or innovative energy saving solutions that have been applied to a site development can be described, justified, and submitted for potential extra points.

Geotechnical and environmental professionals can work with design and construction teams to gain as many as 5 or 6 additional points – and that might be the difference between Silver and Gold, or Gold and Platinum.