by John Seymour
More than 45 years ago, Arlington County adopted Administrative Regulation 4.4, promising that “projects undertaken by the Arlington County Government and Arlington Public Schools (APS) with significant environmental impacts shall be designed, constructed and operated to enhance or to have minimal adverse effects upon the environment.” To fulfill that promise, the County prepares an environmental assessment (EA) for each project. The purpose of the EA is to inform the public and to allow “citizens to raise environmental issues,” and to provide a reasoned basis for evaluating and weighing potential adverse environmental effects.
This was, and remains, a remarkable commitment. Arlington County may be the only locality nation-wide that, on its own initiative and without state mandate, has imposed such requirements on itself. It issued the regulation not long after passage of the federal National Environmental Policy Act (NEPA) — often-referred to as the nation’s “flagship” environmental law — which requires federal EAs and Environmental Impact Statements for federal proposals. In the decades since NEPA’s enactment, however, fewer than one-third of the states have adopted mini-NEPA laws to analyze the effect of state-sponsored projects on the human and natural environment. (Virginia does have such a law). To many Arlingtonians, the County policy represents a long-standing, innovative, and highly valued pledge to pursue careful environmental stewardship in its projects and operations.
What does Regulation 4.4 Require? Given Arlington’s small size, increasing density, and growing urbanization, proposed civic projects can markedly reduce the tree canopy, increase impervious surface, aggravate air pollution, create additional noise and lighting, and over-tax stormwater systems and transportation systems, among a number of other potential adverse environmental effects. Regulation 4.4 requires, for all County “projects,” the preparation of an EA that considers those effects. The EA is prepared by the agency funding the project — typically APS or the Department of Parks and Recreation (DPR). The agency then requests the Environment and Energy Conservation Commission (commonly known as E2C2) to review the draft EA and schedule a public hearing. After reviewing the EA and hearing public comment, E2C2 prepares a letter to the County Board summarizing its concerns.
Why is Regulation 4.4 So Misunderstood? Many citizens, if aware of the regulation at all, assume that it establishes a truly mini-NEPA, mimicking NEPA’s procedures and producing a lengthy technical document. They often express frustration that County staff (and perhaps, by implication, E2C2), are shortchanging the environment when EAs are not conducted or reviewed for such major and contentious County proposals as the Arlington Boathouse, or the aquatic center, or the proposal to light the Williamsburg soccer fields, or any of a number of major County infrastructure projects.
The environmental review process contemplated by Regulation 4.4, however, is far more modest than the federal process required under NEPA. Perhaps most important, the County requirement is triggered only by a “project.” The County has construed “projects” for purposes of EAs as limited to those approved by the County Board and for which funding has been granted. Federal EAs and EISes, on the other hand, are prepared for “proposals,” which courts have construed broadly to include any instance where an agency has a goal and is working actively toward achieving that goal — “more than a glimmer in the agency’s eyes.” Thus, for example, the County will not conduct EAs on such key issues as the siting of a park or school, or for broad agency programs such as yard waste collection, or the updated Community Energy Plan, or new zoning standards for ancillary housing units, or even whether a major discrete construction project should be undertaken. Rather, the EA required by Regulation 4.4 is solely and narrowly concerned with the design and operating of a facility, not the decision to establish the facility or program in the first place. For that reason, EAs are prepared at the preliminary design stage, after many key approval and funding decisions have already been made. Thus, for example, EAs for the proposed Arlington Boathouse and Aquatic Center are deemed premature, since a preliminary design does not exist. For the Williamsburg soccer fields, a preliminary design was prepared to help the deliberations of the Williamsburg Lights Working Group, but the County maintained that no EA was required because there was no “project” to review — no approval of lights or funding.
In addition, County-prepared EAs are far less sophisticated and comprehensive than a federal EA. Federal EAs and EISes are invariably prepared by multi-disciplinary consultants, typically run hundreds of pages, and cost hundreds of thousands of dollars. County EAs are very short, prepared in checklist form, and provide a brief narrative outline of the preliminary design and how that design will comply with state and federal water, air, and solid waste requirements, together with the project’s implications for “flora and fauna”, “transportation and circulation,” and “cultural and historic resources.” Far too often, in E2C2’s experience, the narrative is perfunctory and does not describe options and alternatives considered by the design team that could further mitigate adverse effects. Although E2C2 will frequently ask for additional design detail and explanations for the precise approach selected, EAs often remains skeletal and vague.
A third major difference between County and federal EAs is the experience and skill of the reviewers. Federal EAs are produced and reviewed by professional environmental consultants. E2C2 — like all of Arlington’s Commissions — is made up entirely of citizen volunteers with limited time and no County funding or staff support. Although many commissioners have training in environmental policy, or with specific environmental issues (wastewater, solid waste, energy consumption, air emissions), they do not have always have the time or talent to review with care every proposed design element mentioned in an EA, even when the design team provides sufficient detail.
Should EAs Be Continued? Throughout my more than 3 years on E2C2, County staff have repeatedly proposed to “revise” or “reform” Regulation 4.4. Staff have frequently expressed their belief, couched a bit more politely perhaps, that EAs rarely add value to the County’s design/construction team and are “speed bumps” to a planning process already hamstrung by procedural hurdles. After all, Public Facility Review Committees (PFRCs) and Building Level Planning Committees (BLPCs) are commonly established to provide both commissioners and the public ample opportunity to influence the design and operations of civic projects. Because PFRCs and BLPCs consider sustainability issues, the argument goes, EAs are unnecessary and have outlived their purpose.
More recently, staff have proposed a pilot project, expected to be initiated this year, to replace EAs entirely with a computer accessible database, available to the public at large, setting forth each project’s timeline and draft deliverables. Using this approach, public and Commission comments could be submitted to — and be reviewed in real-time by — project architects, engineers, and planners as the project evolves. The pilot project appears consistent with the County Manager’s Open Data Initiative and could, I think, help County residents better understand, review, and influence on-going County projects.
While many commissioners welcome the pilot project and share County’s and E2C2’s concerns about the current EA process, some continue to believe that EAs can play a useful role in County planning. With respect to the oft-repeated complaint of procedural delay and red tape, the same concerns are expressed by every federal agency under pressure from policy-makers and their constituents to expedite decision-making. Proponents of EAs, however, respond that delay is precisely the point. The policy embodied in both NEPA and Regulation 4.4 is to ensure that environmental protection is a part of the mandate of every agency. That goal requires a careful and deliberate look at potential adverse environmental effects and ways to mitigate those effects.
Particularly now, where climate change and energy sustainability have become existential issues and where action in Washington and Richmond on environmental issues is hesitant or lacking entirely, local leadership has become more and more important. And although PFRCs and BLPCs can be quite robust and engender careful, lengthy and informed debate on numerous design topics, they are often captive to particularly local interests (school parking, transportation demands, roads) and tend — with some exceptions such as the Discovery School — to view environmental sustainability as an after-thought. Geo-thermal and solar power, or maximization of green space and preservation of existing trees, too often are the first issues sacrificed to fiscal constraints, or to staff parking and citizen transportation demands.
Recent examples of the relative priorities of PFRC members are evident in the votes to augment faculty and staff parking at the new Wilson School — even though the school will be located in a heavily developed urban setting with readily available public transportation, or the decision to remove mature trees at the forthcoming Stratford Middle School to accommodate an additional driveway to address neighbors’ concerns about increased traffic congestion. There is, of course, nothing wrong with such decisions. It is inherent in a democracy that ultimate decisions weigh a host of economic, environmental, and political factors. But the oft-neglected environmental aspects of a project within the larger community planning process suggest that a more focused inquiry into sustainability and environmental impacts is also warranted.
EAs can help inform and refine agency decision-making to improve environmental outcomes. They also foster and encourage the public’s participation in decisions that affect them. Regulation 4.4 emphasizes that EAs are intended to “provide residents of the County with information concerning potential impacts of projects undertaken by the County and to provide a mechanism by which citizens may raise environmental issues.” Consistent with that purpose, the regulation requires a formal staff presentation and public hearing for each project. To ensure a full and balanced discussion, the regulation also directs the County to notify other County Board-appointed advisory groups (Urban Forestry, for example), other citizens’ groups (typically, affected Civic Associations) and other interested individuals. The hearings have proven useful to both the public and the Commissioners as the preliminary design (and its potential adverse environmental effects) are discussed in a public forum before a larger group of interested stakeholders.
How to Improve the Process: Regulation 4.4, by its terms, applies to any County project with potentially significant environmental effects. In practice, however, E2C2 receives EAs largely from APS. DPR has been loathe to generate EAs, even when park renovations cost millions of dollars and result in a complete site re-design with undeniably significant environmental effects. DPR typically argues that park projects are exempt from EA requirements because they constitute “ordinary maintenance activities” outside the scope of Regulation 4.4. Although such a reading stretches the regulatory language beyond all reason, DPR staff continue to resist E2C2’s efforts to encourage EA development and review for park projects.
The frequent complaint of County staff that EAs sometimes add “little value” to the architect/engineering team has, I fear, some merit. E2C2 struggles with an ever-increasing caseload as the County is becoming more and more urban, builds more facilities, and begins more environmental initiatives (the completed Streetlights Management Plan, the draft Community Energy Plan, and the recently-approved Public Spaces Master Plan are only three recent examples of the kinds of programs in which E2C2 representatives participate). A PFRC or Working Group for a single project can require commissioner attendance at a score or more of meetings over a period of several years. Citizen volunteers — however passionate and well-intentioned — typically hold full-time jobs and cannot always attend every meeting or conduct the careful environmental review expected by staff and required by regulation.
As I was departing E2C2, the commissioners were beginning to consider ways to improve the quality of its EA review. Measures being explored included the appointment of a lead commissioner for each EA, with specific content areas assigned to other commissioners with a background, or at least a strong interest in, that area. E2C2 was also considering measures to ensure that the draft EA is prepared and available for review and public comment well before irretrievable design and funding commitments are made, so that comments can be fully and fairly considered. At the same time, Commissioners are attempting to engage with the County staff and their consultants regularly to identify and discuss, as early as possible, potential areas of concern. And, of course, the Commissioners have been urging staff to respond with greater grace and patience when asked for additional information, or to supplement a draft EA they find particularly opaque or sketchy.
Conclusion: Regulation 4.4 establishes an admirable ideal — a careful and highly-public process to ensure that civic projects are designed to identify and mitigate potential adverse environmental effects. Though under-resourced, unevenly applied, and frequently honored only in the breach, the Regulation does reinforce and flesh out Arlington’s long commitment to both environmental sustainability and project planning.
Perhaps what is most remarkable about it, however, is the trust it places in ordinary citizen volunteers. It is, at bottom, precisely that “trust” that is the essence of “the Arlington Way” — the shorthand for Arlington’s painfully slow but admirably inclusive process for encouraging citizen participation in local decisions. The Arlington Way encourages direct citizen action and reinforces the belief of so many residents that government can be and should be a force for good, but is too important to be left to the politicians and professional staff alone. EAs are the embodiment of that ethic.
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