Your San Joaquin Valley development project may be subject to a new (2006) clean-air rule that requires developers to pay fees for emissions that their project is estimated to generate both during and after construction. The estimate is done through an Air Impact Assessment (AIA) and the fees can be substantial. Initial AIAs filed indicate that, without mitigation, 2007 fees may be as much as $1.00 per square foot of commercial retail space, $600 per unit of single family residential, and $.75 per square foot of industrial / office. Fees are scheduled to increase significantly in 2008.

For an ISR Project Evaluation of your project’s ISR 9510 fees and possible mitigation strategies contact an attorney in the Land Use and CEQA practice group at McCormick Barstow today.

Background of ISR 9510
The San Joaquin Valley Air Pollution Control District (SJVAPCD) enacted ISR 9510 to assess fees on "indirect sources" of emissions. The Clean Air Act of 1988 defines "indirect sources" as ". . . a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution."

ISR 9510 requires indirect source emissions to be reduced to attain California and federal standards. Indirect source emissions include particulate matter (soot, ash, dust) and nitrogen oxide (vehicle, industrial emissions) both during and after construction. Using an AIA, emissions are estimated for each new project that requires discretionary approval of a public agency. If emissions are above target levels, fees are assessed.

A lawsuit has been filed to challenge the validity of ISR 9510 fees. Some developers have elected to delay filing their AIA in hopes that the lawsuit will invalidate ISR 9510 or until the SJVAPCD enforces the rule. However, the lawsuit may take years to resolve and the SJVAPCD is already actively pursuing developments that have not filed their AIA. We file a protest letter with your AIA to protect your right to reimbursement of fees should ISR 9510 be invalidated.

Who is Affected?
Development projects that require approval of the local agency, including but not limited to residential, industrial, and commercial, within the SJVAPCD (San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare and western Kern County) are subject to ISR 9510. If you currently have a project of at least 50 residential units, 2,000 square feet of commercial space, or 39,000 square feet of general office space, and you did not have final discretionary approval by March 1, 2006, you must file an AIA or risk penalties.

What Action is Required?
Developers of qualifying projects must file an AIA with the SJVAPCD upon receiving tentative map approval. The AIA provides SJVAPCD specific data about your project that will determine the amount of emissions assessed to your project and the fees for emissions not mitigated to acceptable levels.

ISR 9510 Fees
Fees are assessed for unmitigated emissions and may be a substantial budget item for your project. Commercial development has generated the highest ISR 9510 fees thus far. Fees for a commercial retail center may be as much as $1.00 per square foot and single family residential may be as much as $600 per unit. With mitigation, you may be able to reduce your commercial fees by approximately 40% and residential fees by approximately 20%.

How to Reduce Fees?
Schedule an ISR Project Evaluation with an attorney in the Land Use and CEQA Practice Group at McCormick Barstow immediately to determine whether your project is subject to Rule 9510, obtain initial fee estimates and evaluate feasibility of mitigation measures to reduce your fees. Existing aspects of your project that qualify as mitigation and low-cost modifications may reduce fees.

Important! ISR 9510 fees are scheduled to increase approximately 25% in 2008. Get an ISR Project Evaluation before the end of 2007 to determine if it may be more cost effective to file your AIA in 2007.

This information has been published by McCormick Barstow’s Land Use and CEQA attorneys. They can be reached at (559) 433-1300.

This item is intended for informational purposes only and is not intended as legal advice or as a substitute for legal consultation in a particular case or circumstance. Transmission of this information is not intended to create, and receipt does not create, an attorney-client relationship.