Monthly Archives: March 2017

Federal Court Rejects Lawsuit to Force Stormwater Permits in the Charles River Watershed

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The following is a guest post by Hamilton Hackney of Greenberg Traurig regarding the recent decision in CLF v. EPA. NAIOP is extremely pleased with the decision in this case, which we had been following closely. NAIOP will continue to monitor stormwater issues at the state and federal levels on behalf of the commercial real estate industry.

Last week, the federal district court dismissed a lawsuit that sought to force USEPA to create a permitting program for stormwater discharges in the Charles River watershed.  Filed by the Conservation Law Foundation and the Charles River Watershed Association, the suit claimed that USEPA had a mandatory duty to require commercial and institutional properties that discharged stormwater to obtain permits to do so.  If successful, this suit would have forced commercial and institutional property owners to obtain permits, develop stormwater control plans and possibly design and install additional stormwater controls on their properties.

The suit invoked USEPA’s so-called Residual Designation Authority in the Clean Water Act. Although this authority has been exercised very infrequently to date, environmental groups are increasingly citing this statutory authorization as a basis for demanding that USEPA expand regulation of stormwater beyond industrial sources, construction sites and municipal stormwater systems.  In this particular case, the environmental groups argued that USEPA’s approval of “pollution budgets” (Total Daily Maximum Loads or TMDLs) for the Charles River obligated USEPA to regulate previously unregulated stormwater discharges to ensure that the TMDLs were achieved.  Given the hundreds of existing or proposed TMDLs in Massachusetts alone, that position could have far-reaching consequences for commercial and institutional real estate in the many watersheds with TMDLs.

The federal district court’s dismissal of this lawsuit follows another federal court decision last December in a similar case in Rhode Island.  Together, these decisions indicate that courts remain reluctant to intrude on USEPA’s discretion to choose when and how it may exercise its Residual Designation Authority.  While that is an encouraging outcome, these decisions are likely to be appealed, so there may be more developments on this issue.

MBTA On Track to a First Class System

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The MBTA has come a long way from the winter of 2015! With the formation of the Fiscal and Management Control Board and the waiver of the Pacheco law (regarding privatization), the T has reduced its operating expenses substantially, allowing more money to go to critical capital improvements. The growth in operating expenses averaged 5% annually over the last 15 years (against a 2% annual increase in revenue during the same period), but, for the first time, showed negative expense growth in 2016, with zero growth projected for 2017!

The reforms are working and consumer ratings are up. Here are some of the changes over the past 18 months that have been implemented to put the MBTA on a fiscally sustainable path:

  • Introduced monthly financial targets and manager accountability
  • Moved MBTA onto statewide contracts and payroll system
  • Streamlined corporate HQ/admin positions with 30% reduction
  • Strengthened and enforced overtime and attendance policies
  • Modernized cash-handling & warehouse through contracting
  • Restructured Carmen’s Union contract work-rules and wage rates
  • Launched Uber/Lyft and Taxi paratransit pilots
  • Restructured and refinanced debt portfolio; locked electricity rates
  • Rebid parking/advertising and raised system-wide fares
  • $100M winter resiliency investments / $140M in capital lock-box

In addition, the MBTA is in the process of privatizing the “cash room” operation and the manual route scheduling system. Both of these are projected to save the T over $12.2 million annually.

Another example of reforms is the pilot project for “The Ride”, providing access to the disabled community. An average ride has cost the T $46; however, the pilot using Lyft/Uber brought the cost down to $8.98. Along with that, consumer satisfaction shot to 79%. The transit industry standard is 12% and the MBTA, as a whole, has been a -1%.

The next proposal in front of the FMCB will be the privatization of Bus Maintenance.  A privatized machinists staffing is projected to be based on 200K miles per machinist versus 100k miles for the current MBTA staffing (requiring half of the current maintenance staff).

NAIOP has been a strong supporter of MBTA reforms and has been a part of a broad business and municipal “Fix Our T” coalition. We encourage the administration and the control board to continue bringing efficiency and cost savings to the T, while investing in its capital plan, providing the riders and the tax payers with a first class transit system.

With the Boston CPA Approved, How Should the Program be Administered?

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Boston residents voted to adopt the Community Preservation Act by an overwhelming majority in November. The CPA is designed to create affordable housing, and preserve open space and historic sites through the creation of a local Community Preservation Fund. A one percent real estate tax surcharge on commercial and residential properties will go into this fund and will be administered by a nine-member Community Preservation Committee appointed by the city. Of the money generated by the CPA, at least 10 percent must be allocated to housing, 10 percent to open spaces, and 10 percent to historic preservation. The remaining 70 percent can be allocated to any one of those three uses at a different rate.

The City Council is responsible for creating the ordinance that will establish the Community Preservation Committee (CPC). The ordinance would establish the CPC’s composition, length of member terms, the method of selecting its members, and outline the responsibilities of the CPC.

NAIOP suggests that the CPC could be tasked with establishing the annual percentage allocations among the three categories of investments. Those budgets could then be provided to the City agencies best positioned, staffed, and experienced to review the proposals submitted through a “Request For Proposals” (RFP) process. The agencies’ recommendations for grants could then be reviewed by the CPC prior to submission to the Mayor and the City Council for final approval. This system would utilize the established expertise within the City agencies, rather than creating a parallel “review process” that might be limited by staffing and funding.

With respect to housing, it would be unusual for a CPC grant to be sufficient to fund new housing, rather than being a gap participant in the more complex financing structure. In that case, the Department of Neighborhood Development would be better suited to determine where these funds could best leverage the most housing (a similar arrangement exists under Somerville’s CPA). Again, their recommendations would still need to be approved by the City Council and the Mayor.

As with any new program, the devil is in the details.  For this to succeed, it is essential for the City to develop a rational, transparent, and cost effective process. Only then will the CPA be of the greatest good to Boston.