Articles Posted in Environmental Law

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Petitioner Chelan Basin Conservancy (Conservancy) sought the removal of six acres of fill material that respondent GBI Holding Co. added to its property in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of Lake Chelan. At issue was whether the State consented to the fill's impairment of that right and, if so, whether such consent violated the public trust doctrine. After review, the Washington Supreme Court found the Court of Appeals correctly concluded that the legislature consented to the fill's impairment of navigable waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals prematurely concluded such consent did not violate the public trust doctrine. Because the trial court never reached the highly factual public trust issue, the Court reversed and remanded to the trial court to determine in the first instance whether RCW 90.58.270 violated the public trust doctrine. View "Chelan Basin Conservancy v. GBI Holding Co." on Justia Law

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This case stemmed from a dispute over the regulatory schemes of the State Environmental Policy Act (SEPA) and the energy facilities site locations act (EFSLA), and how those schemes applied to a lease agreement between respondents, the Port of Vancouver USA and its board of commissioners (Port), and Tesoro Corporation and Savage Companies (Tesoro). The lease agreement permitted Tesoro to construct a petroleum based energy facility on the Port's property. The agreement remained contingent on review by, and certification from, the Energy Facility Site Evaluation Council (EFSEC), the primary decision-making authority in the field of energy facilities siting and regulation under EFSLA. EFSLA incorporated by reference numerous regulations from SEPA, including WAC 197-11-714(3) and -070(1)(b) which precluded agencies "with jurisdiction" from taking actions that would "[l]imit the choice of reasonable alternatives" prior to the issuance of an environmental impact statement (EIS). The Port entered into the lease agreement with Tesoro prior to EFSEC's issuance of an EIS. Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center (collectively, “Riverkeeper”) sued the Port, alleging, among other things, that the lease agreement limited the choice of reasonable alternatives available to the Port, thereby violating SEPA. The trial court summarily dismissed Riverkeeper's SEPA claims in favor of the Port, holding that the contingencies contained within the lease preserved reasonable alternatives available to the Port. The Court of Appeals affirmed. After review, the Washington Supreme Court affirmed the Court of Appeals, finding the Port's lease with Tesoro did not violate SEPA. However, the Court affirmed only the outcome; the Court adopted the trial court’s reasoning and affirmed. View "Columbia Riverkeeper v. Port of Vancouver USA" on Justia Law

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The issue this case presented for the Washington Supreme Court's review centered on whether Washington's vested rights doctrine excused compliance with the requirements of a municipal storm water permit. The Washington State Department of Ecology issued the third iteration of a municipal storm water permit pursuant to the Federal Water Pollution Control Act the National Pollutant Discharge Elimination System permitting program (established by the Act). Various permittees appealed this portion of the permit to the Pollution Control Hearings Board, claiming that it violated the vested rights doctrine because it compelled them to retroactively apply new storm water regulations to completed development applications. The Pollution Control Hearings Board held that the vested rights doctrine did not apply to storm water regulations permittees must implement as part of the National Pollutant Discharge Elimination System permitting program. The Court of Appeals reversed, finding that the vested rights doctrine excused compliance with the storm water regulations because they were "land use control ordinances." Finding that the Court of Appeals erred in its judgment, the Supreme Court reversed and reinstated the Pollution Control Hearings Board's order. View "Snohomish County v. Pollution Control Hr'gs Bd." on Justia Law

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The issue this case presented for the Supreme Court's review centered on a challenge to a water right permit issued to the City of Yelm. The permit allowed the Department of Ecology to authorize withdrawals of water that impaired minimum flows where it was determined overriding considerations of public interest (OCPI) were established by the permit applicant. The trial court affirmed the Pollution Control Hearings Hoard's decision approving the permit. Sara Foster was the challenger to Yelm's permit, arguing Ecology exceeded its statutory authority in approving the permit under the OCPI exception. While this case was pending in the trial court, the Washington Supreme Court decided "Swinomish Indian Tribal Community v. Department of Ecology," (311 P.3d 6 (2013)), in which the Court comprehensively analyzed the statutory provision at issue here, and held that the provision operated as an exception to the overall prioritization of water rights, and that withdrawals of water authorized under that statute could not permanently impair senior water rights with earlier priority. After review of Foster's arguments, the Supreme Court concluded that "Swinomish" controlled in this matter, and reversed for many of the same reasons. View "Foster v. Dep't of Ecology" on Justia Law

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The issue this case presented for the Supreme Court's review centered on plaintiffs' claims under the Growth Management Act (GMA), chapter 36.70A RCW, and Planning Enabling Act (PEA), chapter 36.70 RCW, were properly dismissed as time barred. The trial court granted defendant-Skamania County's summary judgment motion on each of the plaintiffs' claims, but the Court of Appeals reversed on the GMA and PEA claims, reasoning that a genuine issue of fact remained as to: (1) whether Skamania County actually completed periodic review on August 2, 2005, which Skamania County argues triggered the clock for the GMA claim; and (2) the date on which the inconsistency, if any, arose between the unmapped classification and the conservancy designation, which would have triggered the clock for the PEA claim. After review, the Supreme Court agreed with the Court of Appeals in part, holding that both claims were timely because: (1) inaction generally does not trigger the GMA 60-day appeal period; and (2) in this case, no actionable inconsistency existed between a 1986 ordinance and the "2007 Comprehensive Plan" (2007 Plan) until August 2012. Because further factual development was unnecessary to address the time bar issue, The Court affirmed the Court of Appeals' reversal of the trial court and remand the case to the trial court for further proceedings consistent with this opinion. View "Save Our Scenic Area v. Skamania County" on Justia Law

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In 2010, the Washington Supreme Court found that the State Legislature's 2003 amendments to the state's water law were facially constitutional. In this case, Appellants Scott Cornelius, Palouse Water Conservation Network, and Sierra Club Palouse Group (collectively Cornelius) brought an as-applied constitutional claim (among other claims) against Washington State University (WSU), the Department of Ecology, and the Pollution Control Hearings Board (PCHB). Upon further review, the Supreme Court found that the amendments were applied constitutionally, and found appellants' other claims unavailing. View "Cornelius v. Dep't of Ecology" on Justia Law

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The issue before the Supreme Court in this case was whether the Department of Ecology erred in determining that no environmental impact statement (EIS) was necessary for a proposed energy cogeneration project, and failed to adequately consider the effects of carbon dioxide emissions and demand for woody biomass from the state's forests. In addition, the issue on appeal centered on whether the project was exempt from the EIS requirement as part of an energy recovery facility that existed before January 1, 1989. After review, the Supreme Court concluded Ecology adequately reviewed the relevant information in determining that the project would not have significant impacts on the environment, and the project was exempt from the EIS requirement. View "PT Air Watchers v. Dep't of Ecology" on Justia Law

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The issue before the Supreme Court in this case involved the validity of an amended rule from the Department of Ecology that reserved water from the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows these uses would impair established minimum in-stream flows necessary for fish, wildlife, recreation, navigation, scenic and aesthetic values. The Swinomish Indian Tribal Community (Tribe) sued, challenging the validity of Ecology's amended rule reserving the water. The trial court upheld the amended rule and dismissed the Tribe's petition. After its review, the Supreme Court concluded that Ecology erroneously interpreted the statutory exception as broad authority to reallocate water for new beneficial uses when the requirements for appropriating water for these uses otherwise cannot be met. "The exception is very narrow, however, and requires extraordinary circumstances before the minimum flow water right can be impaired." Because the amended rule exceeded Ecology's authority under the statute, the amended rule reserving the water was invalid under the Administrative Procedure Act (APA). View "Swinomish Indian Tribal Comm'y v. Dep't of Ecology" on Justia Law

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Respondent and rancher Joseph Lemire was directed by the state Department of Ecology to curb pollution of a creek that ran through his property. Respondent unsuccessfully challenged the order at the Pollution Control Hearings Board. He then filed an appeal at Superior Court. That court invalidated the agency order as unsupported by substantial evidence. Furthermore, the Superior Court concluded that the agency order constituted a taking. The Department appealed. The Supreme Court reinstated the Board's order and the underlying agency order, holding that Respondent failed to establish a taking. View "Lemire v. Dep't of Ecology" on Justia Law

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The issue before the Supreme Court in this case concerned the adjudication of water rights in the Yakima River Basin. The parties brought various challenges to the conditional final order of the trial court determining their water rights. The Court of appeals transferred the case to the Supreme Court for direct appeal. Upon review, the Court reversed the trial court's decision concerning the quantification of irrigable land on the Yakama reservation, and reversed the trial court's determinations regarding the Nation's right to store water. The Court affirmed the trial court's conclusions regarding the rights of nontribal claimants to excess water, but reversed the application of the "future development excuse" under RCW 90.14.140(2)(c) for nonuse of a water right. Finally, the Supreme Court affirmed the trial court's denial of several individual water rights claims. View "In re Rights to Waters of Yakima River Drainage Basin (Acquavella)" on Justia Law