Contract documents

May 22, 2024

Conversations around climate change have brought many environmental and social issues to the forefront.  And as the climate continues to change, one aspect that has recently come into focus is water use in commercial buildings.

 Water conservation in buildings

According to the National Oceanic and Atmospheric Administration, “August 2023 was Earth’s hottest August in NOAA’s 174-year climate record.” In the United States, and particularly in western states, communities are expected to continue experiencing severe and unprecedented water shortages, and “Experts warn that as the crisis deepens, water cuts will need to be introduced, but this may not be enough.”

Water conservation and reuse have been components of third-party certifications such as LEED, the Living Building Challenge, and others, for some time.  And from an Environmental, Social and Governance (ESG) perspective, water will continue to be an important metric.  In fact, when Harvard Law School’s Forum on Corporate Governance released its “Top 15 Anticipated ESG-Related Considerations That Will Influence Strategy in 2023,” the authors noted as consideration No. 5, “water metrics will quickly become an incredibly close second to emissions-related disclosures.”

In response to these statistics and warnings, the built environment’s use (or misuse) of this resource has come under increased scrutiny from regulators, practitioners, industry groups, and others.

Relationship to benchmarking and performance standards

Over the past few years, an increasing number of jurisdictions have implemented mandatory benchmarking policies.  While many of these policies apply to energy use, some apply to both energy and water use.  For example, in November, 2023, the City of Detroit implemented an energy and water benchmarking policy.

Building owners and operators will want to keep in mind that benchmarking laws are often used as a tool to obtain and analyze the data necessary to set reasonable use targets, which are then used as the basis for development of performance standards. Given the rise in the number of water benchmarking jurisdictions, and the increasing number of jurisdictions implementing Building Performance Standards focused on energy, building industry professionals should expect water performance in commercial buildings to be regulated in the near future.

Case studies and resources

To address water use and management, innovative conservation and reuse strategies have been implemented on numerous projects.  There are also a variety of resources available for project teams looking for tools and case studies.

For example, the Bullitt Center, which opened in 2013 in Seattle, Washington, was one of the first projects to attempt robust, on-site rainwater storage and treatment at the scale of a commercial office building.  A 2020 research paper examined the viability of the project’s water system.  The paper is available at this link, and the Building Innovations database provides additional information on this, and other case study projects.

There are also a number of projects that demonstrate how commercial buildings can provide benefits to  water systems beyond their four walls.  Among other sustainability strategies, the Watershed project was designed to treat stormwater run-off from a nearby bridge through a series of bioretention planters, which also helps to protect a significant salmon migration route.

Additional resources include:

• US Environmental Protection Agency (EPA): recently published updated guidance that includes various water efficiency best management practices for commercial and institutional facilities.
• Institute for Market Transformation: collects energy benchmarking requirements, and the downloadable summary chart also indicates if water benchmarking is required.

Innovative water projects can be tricky, but there are a growing number of tools and resources available, as well as completed projects that provide built examples and case studies.  And as noted above, water use and conservation will likely come under increased regulatory scrutiny, so owners and operators will want to get and stay ahead of these regulatory and market trends.

Nicole DeNamur is an attorney and sustainability consultant, based in Seattle, WA.  Her company, Sustainable Strategies, helps clients identify and manage the risks of sustainable innovation so they can pursue robust sustainability goals.  She is also an award-winning contributing author and has developed and taught graduate-level courses at the University of Washington and Boston Architectural College. Nicole was named Educator of the Year by the International WELL Building Institute, and Sustainable Strategies hosts an online course, Accelerated WELL AP Exam Prep.

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AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.