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The Public Policy Implications of Climate Change Science in CWA Litigation Moving to Climate Ready

The Public Policy Implications of Climate Change Science in CWA Litigation Moving to Climate Ready . 14 th Water Information Summit Albert J. Slap, Esq. Visiting Professor, Florida International University College of Law October 23, 2013. Stumbling Across Sea Level Rise.

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The Public Policy Implications of Climate Change Science in CWA Litigation Moving to Climate Ready

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  1. The Public Policy Implications of Climate Change Science in CWA LitigationMoving to Climate Ready 14th Water Information Summit Albert J. Slap, Esq. Visiting Professor, Florida International University College of Law October 23, 2013

  2. Stumbling Across Sea Level Rise • Biscayne Bay Waterkeeper case • Previous CWA cases against municipal sewer systems • The New Normal – Hurricanes Katrina and Sandy? • Miami - #1 City in World at Risk from Sea Level Rise • Total Assets at Risk • EPA-County Sewer Deal – “zero sea level rise” consent decree (proposed) • First case in US (and probably the World) where citizens of a country are using the laws of their country to force their governments to make their critical infrastructure climate ready.

  3. The Larger Context • What is the larger context? • Sustainable South Florida; • Leading into the Future, not Following; • What does this mean? • #1 Making Critical Infrastructure “Climate Ready”; • Potable Water • Sewers • Roads • Electric Utilities • Communications • #2 Transitioning the “Built Environment”; • Building codes • Zoning • Land Use

  4. Connecting the Rhetoric and Action

  5. The U.S. Army Corps of Engineers has since 2009 been required to incorporate likely sea level rise into all civil works planning; this projection is also now used by the Regional Compact of the Southeast Florida Regional Planning Council SLIDE #2 – H.R. Wanless , 2013

  6. NE 163rd St. MDWASD North District Treatment Plant U.S. 1 Munisport Dump SLIDE #14 – H.R. Wanless, 2013

  7. NE 163rd St. MDWASD North District Treatment Plant U.S. 1 Munisport Dump SLIDE #15 – H.R. Wanless, 2013

  8. NE 163rd St. MDWASD North District Treatment Plant U.S. 1 Munisport Dump SLIDE #16 – H.R. Wanless, 2013

  9. Miami Dodge Island Miami Beach Government Cut Fisher island Norris Cut MDWASD Central District Treatment Plant on Virginia Key Fill Dump Bear Cut K. B. SLIDE #28 – H.R. Wanless, 2013

  10. BBWK’s Experts • Plants are vulnerable now from storm surge, flooding and current sea levels (high tides) • Predicted sea level rise just makes it worse • Much worse within useful life of the new facilities – 2025 to 2075 • Hurricane Sandy caused 11 billion gallons of sewage overflows at affected plants • Proposed consent decree capital plan not based on any sea level rise model • Proposed consent decree contains no plant level protections…yet • County needs to do proper vulnerability studies and, ultimately, cost-effectiveness studies on how to proceed – 6 step program

  11. County Experts • Hazen and Sawyer - hired after BBWK sues and brings lack of climate readiness to light; • Hazen and Sawyer - 3-week study confirms risks to County’s 3 WWTPS from storm surge and flooding; • No Hazen and Sawyer recommended adaptive measures included in the proposed Consent Decree submitted to Federal Judge for approval

  12. SLIDE #2 – Wanless and Soden, 2012

  13. Hazen and Sawyer Predicted Losses

  14. Hazen and Sawyer Potential Adaptations • Large Scale Surge Barriers - >$3 billion • Move the Virginia Key WWTP - ~$1.5 to 3 billion • Plant Level Barriers - ~$115 million • Asset Level Barriers/Mitigation - ~$20 million • Raise Equipment Levels • Plug Drains, Sanitary Sewers, Wall Penetrations, Electrical Conduits

  15. Little Dutch Boy

  16. Envisioning the Future • FIU SOA – Miami Beach 2100 Design Challenge • Description: This one-day conference addressed the challenges posed by climate change and sea level rise and discussed the design of robust, resilient urban areas. It brought together stakeholders, as well as national and international subject area experts, and focused on the City of Miami Beach. • We Need a Vision for: • South Florida 2100, • East Coast US 2100, • West Coast 2100 • Coastal Planet Earth 2100

  17. Conclusions - Moving to Climate Ready, Now • Adapt or Die; • The Most Vulnerable Populations Aren’t Mobile; • Public Funds for Critical Infrastructure Must be Spent Wisely Using Vulnerability Analysis and Cost-Effectiveness; • Funding for Public Education and Involvement on Climate Impacts and Adaptation Must Increase Greatly; • Building, Development and Land-Use Codes Must be Brought in Line with Present and Future Realities; • Broad Public Support Will Coalesce Around a Sustainable and Believable Vision of the Future.

  18. BIOGRAPHY: Albert J. Slap, Esq. is a Visiting Professor of Law at FIU’s College of Law, where he teaches Environmental Law. Mr. Slap is also General Counsel to Friends of the Everglades, an advocacy group founded by Marjory Stoneman Douglas in 1969. Mr. Slap has practiced in the area of environmental law for 40-years and has handled some of the largest and most significant public interest cases as lead counsel during that time, including: (1) stopping the dumping of high-level radioactive cooling water into the Susquehanna River after the Three Mile Island nuclear power plant accident in 1979; (2) forcing the City of Philadelphia to invest over $750 million to re-build its three aged sewage treatment plants and end the noxious practice of ocean dumping of sewage sludge into the Atlantic Ocean; (3) forcing the State of Pennsylvania to implement a statewide, automobile emissions control program under the federal Clean Air Act; (4) forcing the City of Cincinnati to re-invest over $1.5 billion in its failing sewage system and stop the widespread backup of raw sewage into hundreds of homes and businesses each year; (5) recovery of millions of dollars to the City of Philadelphia for clean-up of hazardous wastes in the first private Superfund cost-recovery action in the nation; (6) forcing the EPA and the State of Florida into a historic $880 million deal to expand the filter marshes below the Everglades Agricultural Area and above Everglades National Park; and, (7) Mr. Slap is presently lead counsel in the Biscayne Bay Waterkeeper’s citizen suit against Miami-Dade County and EPA to force the County to rebuild its failing sewer system in such a manner that it will be climate ready for future sea level rise and climate impacts. The Biscayne Bay Waterkeeper case is the first case in the US and probably the world where citizens of a country are using the laws of their country to force their government to make a part of society’s critical infrastructure climate ready in light of predicted, future sea level rise.

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