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Adapting design and construction to respond to climate change

By: WISCONSIN LAW JOURNAL STAFF//January 23, 2020//

Adapting design and construction to respond to climate change

By: WISCONSIN LAW JOURNAL STAFF//January 23, 2020//

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By Kimberly Hurtado
Hurtado Zimmerman

Since founding Hurtado Zimmerman SC in 1998, Kimberly Hurtado has built a reputation as a well-respected construction lawyer. Her practice includes domestic and international negotiation of construction, real property, business acquisition and financing contracts, including public bond issuance and related funding mechanisms for major infrastructure projects, such as public-private partnerships, integrated project delivery and other forms of joint-ventured project completion.
Since founding Hurtado Zimmerman SC in 1998, Kimberly Hurtado has built a reputation as a well-respected construction lawyer. Her practice includes domestic and international negotiation of construction, real property, business acquisition and financing contracts, including public bond issuance and related funding mechanisms for major infrastructure projects, such as public-private partnerships, integrated project delivery and other forms of joint-ventured project completion.

Building codes and construction regulations have long shaped the minimum requirements for the safety of our built environment.

These requirements have been based, in part, on recorded patterns of regional geography, temperature and weather. The apparent stability of those environmental conditions is, however, rapidly disintegrating as the effects of climate change continue to intensify.

Polar caps are melting — something that has happened before geologically, but never this quickly. Rising sea levels threaten existing development on shorelines and are changing floodplain boundaries of developable land. Weather patterns are more chaotic, causing heavy rain, snow, and flooding in some places, and alternately, record-breaking drought and wildfire in others.

Earthquakes, high winds and hurricanes also are increasing in frequency and intensity.

It is, in short, a remarkably challenging time to design and construct buildings, roads and other structures to endure increasingly diverse weather and more frequent natural disasters.

In establishing the structural integrity of a building, a designer today is prudent to take into consideration materials that can handle a wider range of ambient temperatures and the possibility of flooding causing foundations to be temporarily submerged or other rapid changes in the surrounding environment. In response to concerns like these, the construction industry is exploring new methods of construction, such as prefabrication and robotic assembly of building materials, embodied water and fire diversion strategies, and use of new composite materials.

For example, deformable structural material is being 3D printed using additive manufacturing and building information modeling technology. This material temporarily twists and bends, rather than remaining a static shape, and is intended to respond to earth movement, flooding and temperature changes without collapsing.

Given the increasing exposure of buildings to catastrophic climate change, designers and constructors should consider expressly addressing their obligations related to environmental conditions in their contracts. In its simplest form, this can be a provision limiting architectural and structural analysis to current code requirements and regional weather as of the time a design is submitted for permitting or a disclaimer of designs to withstand natural disasters. Where known risks of flooding, high winds or fire have become prevalent, specific objective performance requirements should be spelled out in programming and resiliency benchmarks should be added to contract documents (for example, designing roof loads to exceed snow load requirements by 20% or adding building components and landscaping that divert specific quantities of water from a structure by passive and active means in the 500-year flood plain).

Designers and contractors also should be cautious of sweeping provisions that require “compliance with all applicable laws” without having an adequate understanding of federal and state environmental laws that may impact their design and construction obligations.

It also is important to ensure insurance policies issued for construction are adequate to address losses that may arise from natural disasters during and after construction. At a minimum, broad form coverage builder’s risk insurance should be obtained to protect against losses for structural collapse and water-related losses. Depending on the needs of the project, special form coverage should be negotiated with care taken to preclude exclusions for anticipated climate-related risks, with coverage furnished at replacement cost and for soft costs incurred due to delayed completion.

Flood insurance for building and contents can be obtained through FEMA and the National Flood Insurance Program. Commercial general liability insurance can be endorsed to cover toxic mold and bacterial damage, earth movement and broadened completed operations coverage. In addition, business interruption coverage can be profoundly beneficial to mitigate disruption of operations and loss of business income due to natural disaster.

As an additional important means of addressing climate change, it is time that sustainability analysis becomes a norm in our development of every new and renovated structure. Designers and constructors should build resiliency into structures and the surrounding site topography to better withstand the effects of climate change.

The U.S. Green Building Council’s RELi 2.0 (2018), with its measures for hazard preparedness, mitigation and adaptation, is an excellent starting place for this kind of innovative thinking to protect our built environment for generations to come.

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