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Washington State Environmental Laws. October 7, 2009. Presented by: Ken Lederman Riddell Williams P.S. Brief overview of important state laws and regulatory framework Trends in state environmental regulation Caveats Won’t be able to cover everything

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washington state environmental laws

Washington State Environmental Laws

October 7, 2009

Presented by:

Ken Lederman

Riddell Williams P.S.

Brief overview of important state laws and regulatory framework
  • Trends in state environmental regulation
  • Caveats
    • Won’t be able to cover everything
    • The real “meat” of the environmental laws in WA is in the adopted rules and regulations
    • May have to defer in certain areas
types of state environmental laws
Types of State Environmental Laws
  • Command & control
    • Direct regulation over individual, municipal, and corporate activities
      • Water Pollution Control Act, Chapter 90.48 RCW
      • Washington Clean Air Act, Chapter 70.94 RCW
      • Model Toxics Control Act, Chapter 70.105D RCW
      • Haz. Waste Management Act, Chapter 70.105 RCW
      • Forest Practices Act, Chapter 76.09 RCW
      • Water Law
      • Groundwater Regulations
      • Stormwater Regulations
types of state environmental laws4
Types of State Environmental Laws
  • Indirect regulation
    • Requires local governments to adopt rules and to regulate development with state oversight
      • Growth Management Act, Chapter 36.70A RCW
      • Shoreline Management Act, Chapter 90.58 RCW
      • State Environmental Policy Act, Ch. 43.21A RCW
water pollution control act
Water Pollution Control Act
  • Ensures protection of all waters of the state for public health and enjoyment
  • Prevents and controls pollution with all available and reasonable methods
  • Federally delegated program – 90.48.260
    • Ecology carries out with EPA oversight
      • Point Source Discharge
      • Non-Point Source Discharge
      • National Pollution Discharge Elimination Permits (NPDES)
    • Does not cover energy facilities
      • Handled by Energy Facilities Site Evaluation Council (EFSEC)
    • Compensation schedule for NRD resulting from oil spills
water pollution control act6
Water Pollution Control Act
  • Waters of the State – 90.48.020
    • Very broad – covers all fresh and salt water bodies and watercourses AND covers all groundwater resources
  • Pollution – 90.48.020
    • All chemical and biological properties
    • Changes in temperature, turbidity, etc…
    • Any contamination or alteration of water
    • Interpreted very broadly by the courts
water pollution control act7
Water Pollution Control Act
  • Surface water standards
    • Classified from AA through C
      • AA = all water supply, stock, fish habitat, recreation
      • C = only industrial supply, recreation, commerce, navigation
    • Effluent Limitation Approach
      • Discharge Limits (municipal, commercial, and industrial) for Specific Pollutants
    • Antidegradation
      • Cannot lower water quality conditions beyond criteria
    • Mixing Zones
      • Areas where water quality standards are not met
      • Must comply with “All Known Available & Reasonable methods of prevention, control, & Treatment” (AKART)
      • Controversial (verge of extinction?)
water pollution control act8
Water Pollution Control Act
  • NPDES Permits
    • Commercial, municipal, and industrial discharges into waters of the state must have NPDES Permit
    • Local government can develop their own program
  • Ecology sets water quality standards for State
    • Coordination with Forest Practices rules and regulations
  • Enforcement
    • Any act that causes or tends to cause pollution is unlawful
      • Includes Organic and Inorganic Matter
    • Criminal / Civil penalties (Up to $10,000 per day for each violation)
    • Avoid conversion of agricultural land. RCW 90.48.450
stormwater controls
Stormwater Controls
  • Stormwater = Nonpoint source of pollution
    • The leading source of most environmental contamination of water sources in Washington
  • 1987 = Congress amends Clean Water Act
    • Discharge of stormwater from industries and municipalities is a point source requiring an NPDES permit
    • Washington State Delegated Program - Two Phases
      • Phase I = NPDES General Permits to cover discharges from sites of 5 or more acres, and municipalities with more than 100,000 people
      • Phase II = Expansion to all municipalities in urbanized areas, and construction sites from 1-5 acres
stormwater controls10
Stormwater Controls
  • Permits
    • Phase I, Phase II Municipal, Construction, Industrial
    • Requires stormwater management program
      • Reduce the discharge of pollutants
      • Reduce harm to receiving waters
      • Eliminate all inappropriate discharges
  • Permits are very much in flux right now
    • PCHB ruling on “LID” stormwater requirements
    • “Required” where feasible, not just allowable
    • Parcel and Subdivision Level (not basin/watershed level)
  • Stormwater Management Manual
    • Separate manuals for Eastern and Western WA
    • Guidance for stormwater control measures at applicable sites
    • Established practices = compliance
water law
Water Law
  • Primary Aspects of Washington (and Western) Water Law
    • All waters belong to the public, subject to the existing rights of others. RCW 90.03.010
    • Private rights may not be acquired when use threatens the public interest. RCW 90.03.290
    • Private rights may be obtained from State after evaluation of impact on public interest
      • Once obtained, your water right is a property right
        • Cannot be “taken” without just compensation
        • Can be subject to Condemnation
      • Appurtenant to the land on which it is used
        • Cannot be used on other land without a prior approval from state for a transfer. RCW 90.03.380
water law12
Water Law
  • Doctrine of Prior Appropriation
    • “First in time, first in right”
    • Water right comes into existence only by applying the water to a “beneficial use”
      • Agriculture, mining, power, industrial, or domestic use
    • Fixed quantity provided
      • Any excess use, or “waste” is strictly prohibited
    • Perfecting a right = Putting it to beneficial use
      • Priority date of water right is date that you started to pursue it
    • Perpetuity
      • Must be continuous use without a period of abandonment
water law13
Water Law
  • Water Rights Permit - RCW 90.03.290
    • Water is available
    • Water going to a beneficial use
    • Water right will not impair other existing rights
    • No detriment to public interest.
    • Permit cancelled if you don’t complete the project to which the water is directed in a specific time period
    • Once the water is put to use, certificate issued
      • Establishes the important details of the water right
      • Priority date relates back to date of filing of application
water law14
Water Law
  • Permit Changes = New Application
    • For change of place of use, point of diversion, or purpose of use
    • Cannot get a change in Quantity
    • Forfeiture / Relinquishment
      • Use it or Lose it (5 consecutive years)
      • Exemptions (including use for municipal supply purposes, litigation, or determined future development)
  • Groundwater
    • Separate code - Chapter 90.44 RCW
    • Applies prior appropriation doctrine to groundwater
      • NO permit required for stock-watering, watering a ½ acre parcel of land, or for a single domestic use not exceeding 5000 gallons a day
    • Hydraulic Continuity Principle
      • Can’t have groundwater if it affects surface water rights. 90.44.030
water law15
Water Law
  • Instream flows
    • Retention of water in waterbodies to protect fish, wildlife, and ecological values (serve both “quantity” and “quality”)
    • Water Resources Act - Chapter 90.54 RCW
      • Combines “quality” & “quantity”
      • “Beneficial use” can include instream uses
      • All water rights permits are conditioned to protect instream flows necessary to protect ecological values
      • Metering Statute (RCW 90.03.360)
  • Reserved rights
      • WintersDoctrine – Tribal reservations have “implied” water right to carry out purposes for which the reservation was created
water law16
Water Law
  • Total Maximum Daily Loads (TMDLs)
    • Ecology and EPA implement TMDLs for the 303(d) list
    • Covers all impaired water bodies in WA and ensures water quality standards are met
    • Must be considered under RCW 90.54, so will affect water rights decisions as well as water quality
    • Pend Oreille decision (Washington Supreme Court)
      • A water right does not excuse compliance with Water Pollution Control Act, even if it affects or impacts your water right
      • Important for energy facilities
water law17
Water Law
  • Recent Developments
    • Dual track water right applications
      • Two separate lines (1 for water right applications, 1 for changes)
    • Water conservancy boards
      • Local boards for water rights changes (change of use, etc…)
      • NOT for new water rights applications or tribal water rights
      • Streamlines the process, but raises specter for conflicts
    • Ecology denied ability to use water-quality laws to limit water rights and/or water withdrawals
    • Columbia River Initiative (agricultural use + storage)
    • Municipal Water Law Litigation (Burlingame)
      • Classified developers who provide water to 15 or more homes or businesses as municipalities for purposes of granting water rights
      • Question of what Municipalities can “hold back” without abandonment
washington clean air act
Washington Clean Air Act
  • Federally delegated program
    • Standards of Federal Clean Air Act are coordinated to secure benefits of federal funding
    • NAAQS enforced through state regulatory system
  • Pollution control
    • Controls emissions of all airborne contaminants, including dust, smoke, matter, gas, vapor, etc…
    • Multi-county authorities established to monitor and enforce air quality laws
      • Example -- Puget Sound Clean Air Agency (PSCAA)
        • Ecology covers all other areas
        • Must be as stringent or more stringent than Ecology
washington clean air act19
Washington Clean Air Act
  • Ecology or board must approve plans and specs for construction of new sources of air emissions
    • New source review
    • Replacement or substantial alteration of existing sources
  • RACT – Reasonably Available Control Technology
      • Must achieve lowest emission limit possible by application of technology that is reasonably available
  • All air contaminant sources must obtain renewable permits
    • 5 years, but can be modified or amended at request of permitee
    • Local air authority can apply to operate permit system
    • Includes agricultural burning (wheat, weed, bluegrass, etc…)
  • Current Issues
    • Agricultural burning / ADA controversy
    • New source review (national)
    • GHG / Western Climate Initiative
model toxics control act
Model Toxics Control Act
  • Adopted by Citizen’s Initiative in 1989-1990 (I-97)
  • NOT a federally delegated program
    • EPA still has authority to “overfile” and bring in CERCLA
  • Significant differences between CERCLA & MTCA
    • Covers oil and petroleum products
    • No “mistakes” of CERCLA
    • Lots of public participation
    • National Contingency Plan vs. “substantial equivalence”
    • Successful
model toxics control act21
Model Toxics Control Act
  • Basic legal principles
    • Strict liability
    • Joint & several liability
    • Retroactive
    • Liability imposed on: (1) owners / operators of contaminated property; (2) generators / arrangers; and (3) transporters of hazardous substances
      • Potentially Liable Parties (PLPs)
    • Covers all “releases” of hazardous substances
      • No requirement of “active” or “intentional” conduct
    • Limited judicial appeals
      • No pre-enforcement review
model toxics control act22
Model Toxics Control Act
  • Parties who are not liable
    • Innocent landowners
    • “Plume clause” candidates
    • Lenders / mortgage holders
    • Victims of Act of God or Act of War
    • Victims of acts of third parties (sabotage)
    • Releases solely from application of pesticides
    • De minimis (liable, but for a finite amount)
    • Passive Migration
model toxics control act23
Model Toxics Control Act
  • Toxics Control Accounts
    • Tax on petroleum, pesticides, and chemicals
    • Assist state and local jurisdictions with cleanups
  • Cleanup Standards (“how clean is clean?”)
    • Goal = protection of human health and environment
      • Permanent solutions to maximum extent practicable
      • Cost / Benefit Analysis (disproportionality test)
    • No threat to human health or environment
    • Each medium receives a “Cleanup Level”
    • Must achieve cleanup level at a “Point of Compliance”
model toxics control act24
Model Toxics Control Act
  • Cleanup standards
    • Method A – for the straightforward cleanup
      • Provides numerical cleanup levels for 25-30 of the most common hazardous substances
      • Numerical levels set in the regulations
    • Method B – for the more complex cleanup
      • Most common method for sites with unusual substances or combinations of substances
      • More stringent cleanup standards
      • Sets human-health risk levels for particular substances
    • Method C – for every other kind of cleanup
      • When Method A or B levels are not technically possible
      • Less stringent exposure assumptions – good for industrial sites
model toxics control act25
Model Toxics Control Act
  • Usual chain of events
    • Initial investigation + site hazard assessment (1 to 5)
    • Inclusion on state site hazard list
    • Identification of PLPs
    • Phase I & II site assessments (optional)
      • Determine contaminants and scope of contamination
    • Remedial Investigation / Feasibility Study (RI/FS)
      • Determine where contamination has come to be located
    • Cleanup action plan / interim actions
    • Long-term monitoring / no further action
    • Land use restrictions (restrictive covenant / zoning overlay)
model toxics control act26
Model Toxics Control Act
  • Voluntary Cleanup Program
    • For “simple sites” (gas stations, single-contaminants, etc…)
    • Independent cleanup with limited Ecology oversight
    • Must perform “substantial equivalent” of an Ecology-supervised cleanup
    • Cost-effective (don’t pay for Ecology’s oversight costs)
  • Trends
    • Area-wide contamination
    • Complex cleanups (Spokane River, Mining Sites, Duwamish Waterway, Lake Roosevelt, ASARCO)
    • Land Use Restrictions
    • 5-Year Review
hazardous waste management act
Hazardous Waste Management Act
  • Federally delegated program for enforcement of RCRA
    • Equivalent or more stringent than federal RCRA
  • “Cradle-to-grave” regulation of hazardous waste and dangerous waste
    • Pre-empts local governments
    • Does not cover domestic sewage, wastewater discharges, agricultural waste, asphalt or wood waste, recycled oil filters, etc..
    • Does Cover Recyclables (oil, anti-freeze, E-waste)
hazardous waste management act28
Hazardous Waste Management Act
  • Definitions
    • Dangerous Waste = all discarded or abandoned materials which pose a hazard to human health and environment
    • Extremely Hazardous Waste = all dangerous waste which:
      • will persist;
      • presents a significant environmental hazard;
      • is highly toxic;
    • Hazardous Waste = all dangerous waste that “designates” as hazardous waste and all extremely hazardous waste
        • Listed by adopted regulations
        • Meets 1 of 4 characteristics: ignitability, reactivity, corrosivity, or toxicity
        • “Contained in” Waste = for complex mixtures
hazardous waste management act29
Hazardous Waste Management Act
  • More stringent that RCRA (broader, less exemptions)
  • Governs all “Treatment, Storage, & Disposal” Facilities (TSDs)
  • Enforces the “land ban”
  • “Manifest” requirements
  • Small Quantity Generators and Generators of Household Wastes are Exempt from most requirements (Rule of 22)
    • 220 lbs for DW, 2.2 lbs for EHW
  • TSD permits for facilities
    • Meets basic minimum technical standards (liners, GW monitoring, etc…)
    • “Clean Closure” requirements
    • Financial assurance requirements
    • Corrective Action
forest practices act
Forest Practices Act
  • Goal
    • Sound natural resource protection
    • Maintenance of forest products industry
    • Protection of soils, water quality, recreation, scenic beauty, species, etc…
  • Creation of Forest Practices Board
    • 11 members
    • Ecology, Public Lands, CTED, Agriculture, Elected County Legislator, 5 public landowners appointed by the Governor
    • No local governmental control over forest practices
forest practices act31
Forest Practices Act
  • Adoption of Forest Practice Rules
    • Class I – forest practices that have no direct potential for damaging a public resource
        • No application or permit needed
    • Class II – forest practices which have a less than ordinary potential for damaging public resource
        • May be conducted 5 days after notification with no application or permit needed
forest practices act32
Forest Practices Act
  • Adoption of Forest Practice Rules
    • Class III – anything outside I and II
        • Must be approved by DNR within 30 days of receipt of application
    • Class IV – anything outside I and II where a potential for substantial impact is noted
        • Environmental Impact Statement (EIS) required if DNR determines it to be necessary (all other classes exempt from SEPA)
        • Must be approved by DNR after EIS and within 30 days of receipt of application
forest practices act33
Forest Practices Act
  • Reforestation
    • Must occur within 3 years after forest activities completed
    • DNR must review and approve reforestation activities, or additional activities may be required
  • Conversion
    • Must notify DNR if land to be forested will be converted to a use other than commercial timber production within 3 years
    • If so, reforestation requirements do not apply
  • Enforcement
    • Includes water quality and forest resource damages
    • Can include a lien against the property
state environmental policy act
State Environmental Policy Act
  • Modeled after NEPA
  • Commits all agencies of state & local government to maintain and improve environmental quality
    • Full compliance with procedural requirements
  • Recognition of each person’s fundamental and inalienable right to a healthful environment
    • Ministerial decisions become discretionary based on environmental consequences
    • Alternatives must be reviewed, proposed, and analyzed
  • No substantive requirements
    • BUT procedural requirements are significant determinants of substantive decision-making
state environmental policy act35
State Environmental Policy Act
  • How it works
    • Submitting a proposal for development triggers SEPA reqs.
    • Threshold determination
      • Documented through an environmental checklist
        • Primary source of info + documentation repository
      • Determination of significance (DS)
        • Reversed on appeal? Only if “arbitrary & capricious”
      • Determination of non-significance (DNS)
        • Must be based on demonstration that environmental factors were considered
        • Reversed on appeal? Only if “clearly erroneous”
      • Mitigated determination of non-significance - MDNS
          • Stopping impacts ahead of time
state environmental policy act36
State Environmental Policy Act
  • Determination of Significance
    • If any action might significantly impact the environment
      • Very low standard (any moderate effect)
      • Intensity of development + vulnerability of affected environment
      • No analysis of socio-economic benefits
      • No analysis of alternatives at this stage
    • Begin the scoping process (gathering all documentation)
    • Prep for the Environmental Impact Statement (EIS)
    • Notification to any affected party for review & comment
state environmental policy act37
State Environmental Policy Act
  • Environmental Impact Statement
    • Provides more intense environmental scrutiny of project
    • Elements = explain the project, the impacts, the alternatives, the short and long term consequences, and the resource commitments
    • Adequate? Determine if effects and alternatives are sufficiently disclosed and substantiated (rule of reason)
      • De novo review by court (no deference)
    • Supplemental EIS if substantial changes proposed or new data is uncovered related to potential environmental impacts
    • You can use pre-existing or existing documentation
      • No requirement of redundancy
shoreline management act
Shoreline Management Act
  • Designed to strike a balance between pressure for shoreline development and protection of shoreline ecological resources
      • Unrestricted construction is not in best public interest
      • Planned and rational effort to balance environmental protection with private property interests
      • Statewide interest over local interest
      • Increase and preserve public access
shoreline management act39
Shoreline Management Act
  • Jurisdiction
    • 200 feet from the ordinary high water mark
    • Outside of that, no regulatory control
    • Once you’re in a little, you’re in for all
    • Shorelines of statewide significance get greater protection
      • Designated by Legislature
  • Development is allowed so long as it is consistent with SMA and the local Master Program
  • Substantial Development cannot be undertaken without a shoreline permit
    • Anything over $2500
    • Anything that interferes with normal public use
    • Does not include maintenance or repair
    • Does not include bulkheads for single family homes
    • Does not include agricultural activities
shoreline management act40
Shoreline Management Act
  • State & Local Interaction
    • Each local government develops a Shoreline Master Plan based on adopted Guidelines from Ecology
    • Ecology approves each Master Plan
      • Controls both “development” and “uses”
      • Local government has “primary” control, with state maintaining necessary oversight to protect the public interest
        • Local government sets forth shoreline “designations” (natural, recreational, residential, commercial, etc…) in master program
      • Single family residences are preferred
    • Local government then administers the SMP
      • Ecology evaluates permit decisions
shoreline management act41
Shoreline Management Act
  • Substantial Development Permit
    • Issued by local governments for construction
    • Must be appealed by Ecology if inconsistent
  • Conditional Use Permit
    • For a conditional use or a change of use
    • Must be approved by Ecology (Permittee can appeal if denied or conditioned)
  • Variance
    • Allowing an otherwise unauthorized development within prohibited area (within an otherwise prohibited area or zone)
    • Must be approved by Ecology (permittee can appeal if denied or conditioned)
shoreline management act42
Shoreline Management Act
  • Updated Guidelines
    • Implementation of performance standards
    • No reference to ESA requirements, but….
    • No effect on agriculture or single family homes
    • Restoration requirements
    • Protection of ecological functions and processes
    • Integration of GMA requirements
    • Local governments must adopt new guidelines and submit to Ecology for approval
      • Must inventory all shorelines and revise designations
      • Money?!?!?!
growth management act
Growth Management Act
  • Determination of what development is desirable + providing adequate facilities to meet the demand for private development
    • No “independent” or “isolated” jurisdictions
    • Coordination + cooperation + integration
      • Putting public facilities in place before new development occurs
      • Coordinate private development with public facilities (transportation)
      • Requirement of “concurrency” in planning / development
  • Central concept – put growth in existing urban areas
    • Urban Growth Area (UGA) – permanent + intensive use
    • Outside a UGA (i.e. rural areas), only low-density development can occur
growth management act44
Growth Management Act
  • Who must comply with GMA?
    • High-density areas
      • County with 50,000+ people and 17% increase in population in past decade
      • County with more than 20% increase in population in the past decade (regardless of current numbers)
      • Any city with the aforementioned counties
    • Volunteers
      • Any city or county can “opt in”
growth management act45
Growth Management Act
  • Basic principles
    • Adoption of county- and city-wide planning policy
    • Designation of critical areas, agricultural lands, forest lands, and mineral resource lands
      • Critical Areas = wetlands, floodplains, water recharge areas, critical habitat areas, hazard zones, etc…
    • Designation of Urban Growth Areas (UGAs)
    • Adoption of a comprehensive plan
      • Must be submitted to state for approval (including amendments)
      • 7-year Review Process
      • Intensive development outside of UGA??
        • Must meet very specific criteria to prevent development of areas surround the master planned community / resort
growth management act46
Growth Management Act
  • Comprehensive Plan Elements
    • Land Use – distribution and location of land uses (housing, agricultural, etc…)
    • Housing – ensure vitality and character of established neighborhoods
    • Capital Facilities – inventory of current facilities and forecast of future needs
    • Utilities – location and current / future capacity
    • Rural – low intensity areas should be protected from conversion into sprawl
    • Transportation – estimated traffic impacts and future facility / service needs


Please contact me any time with additional questions.

Ken Lederman206.624.3600klederman@riddellwilliams.com