The AI Interview: Clark Morrison, Partner at Cox, Castle & Nicholson LLP

Morrison focuses his practice on permitting and development of large and complex development projects. He is recognized nationally for his concentration in endangered species, wetlands, water law and other natural resource laws.

American Infrastructure: You have focused much of your career around the regulations regarding California’s wetlands. How do these affect water infrastructure, and vice versa?

Clark Morrison: Even with the Trump administration’s de-regulatory efforts, we have a robust federal regulatory program protecting wetlands and other waters of the United States. California’s State Water Resources Control Board is also on the verge of adopting its own far-reaching wetlands permitting program, which will exceed in scope the federal program, even as it was implemented under the Obama administration.

Wetlands and other protected waters are nearly ubiquitous in California, so most linear infrastructure projects require permits from the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, California’s water boards, the California Department of Fish and Wildlife, and the State Office of Historic Preservation. These permit processes are lengthy and expensive, and each agency applies its own regulatory priorities and often conflicting permitting standards to the same piece of infrastructure. Getting infrastructure built in California, whether it is our massive “twin tunnels” project or high-speed rail, is an exceedingly challenging task.

AI: What infrastructure projects or litigation have you participated in that you’re particularly proud of?

CM: I am currently coordinating the efforts of twelve water agencies to secure state and federal permits for comprehensive flood control, water supply, recycled water, and other facilities on a major river system in Southern California. This endeavor is intended to ensure reliable public services to millions of people while enhancing the ability of a number of at-risk fish and animal species to survive in the context of a growing urban environment.

I’m also particularly proud of my work, together with Cox Castle partner Annie Mudge, on behalf of renewable energy developers – particularly wind and solar – to expand California’s impressive and growing renewable energy portfolio throughout the State. California is a leader in renewable energy development, although the regulatory hurdles associated with the siting of these facilities can be daunting and baffling. For me, this is a great and interesting challenge.

AI: How do you think our relationship with water in the natural environment will continue to evolve in the next few years?

CM: In California, we have a massive natural water storage and flood control asset in the form of Sierra snowpack. That asset is diminishing rapidly due to climate change, placing at great risk the capacity of our built water and flood control systems – some of which are approaching a century of aging – to serve a growing population.

Adaptability is key, not just in California, but throughout the West. We need to pursue an “all-of-the-above” solution that includes conservation, recycled water, water transfers and exchanges, desalination in some locations, and – dare I say it – additional transportation and storage options to address the reality of increasingly limited supplies. This will require a high degree of cooperation between elected official, state, and federal agencies, private industry, agriculture, and the environmental community.

AI: What improvements do you think can be made to the way we structure our infrastructure projects in regards to protecting wetlands and endangered species?

CM: The State and Federal agencies have gotten better about integrating environmental concerns into the permitting of large infrastructure projects, relying increasingly on habitat conservation planning and similar vehicles (including a new tool in California called “Regional Conservation Investment Strategies”). Nonetheless, the permitting of projects through multiple agencies has become almost byzantine, and much time and money is wasted on inter-agency turf battles and the generation of process for the sake of process.

The current administration has recognized this problem and taken it on at a breathtaking pace. The new “One Agency Decision” policy and NEPA streamlining requirements should help. One wonders, however, whether an occasional baby is being thrown out with the bathwater. If we don’t take seriously the limitations that are rapidly being imposed upon us through climate change, we will find ourselves in a precarious situation in the future. Certainly, the regulatory process needs to be made vastly more efficient. But we also need to recognize that climate change concerns should increasingly drive our priorities and decisions relative to the improvement of our infrastructure systems throughout the West. This provides both opportunities and challenges on a massive scale.

AI: What’s next for you as a partner at Cox, Castle & Nicholson?

CM: Together with Cox Castle partner Scott Birkey, I have just finished writing a comprehensive treatise on wetlands and endangered species permitting in California. The book is over 600 pages and should be published in 2019. In the meantime, I will continue to work on some of California’s largest public and private infrastructure and development projects, participate in legislative and regulatory negotiations on various fronts, hang out with my family, and do a little fly fishing while I’m at it.

For more information you can reach Clark at cmorrison@coxcastle.com or (415) 262-5113.

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