- Seattle Launches Energy Efficiency as a Service Program, Encouraging Deep Energy Efficiency Building Retrofits (January 16, 2020)
- MTCA: A Citizens’ Initiative Shaped by Agency Action (December 5, 2019)
- Washington’s Voluntary Cleanup Program: Further Action Needed? (November 19, 2019)
- Washington's Model Toxics Control Act: Transforming Contaminated Sites into Community and Environmental Assets (November 1, 2019)
- Washington’s Model Toxics Control Act: Thirty Years and Counting (October 10, 2019)
- Washington State Considers Permits for Nutrient Discharges in Puget Sound (September 12, 2019)
- “Broken Link in the Chain of Liability”: MTCA Decision Highlights Intricacies of Corporate Law (September 5, 2019)
- Planned Updates to Washington’s Dangerous Waste Regulations (August 12, 2019)
- Ninth Circuit Strikes a Blow for PURPA: Winding Creek Solar LLC. v. Peterman (July 30, 2019)
- Washington Agencies Initiate Rulemaking Processes for Implementing Washington's New Clean Energy Legislation (July 19, 2019)
- New Washington Legislation Drives Energy Conservation in Commercial Buildings (July 9, 2019)
- New Washington Legislation Steps on the Electric Vehicle Accelerator (July 2, 2019)
- Court Finds Minimum Instream Flow Rule for the Lower Spokane Invalid (June 28, 2019)
- Washington Clean Energy Transformation Act Establishes Aggressive Mandates for Grid Decarbonization and Renewable Energy Production (June 25, 2019)
- Not So Cooperative Federalism? Washington Sues EPA Over Reversal in Long Running Human Health Criteria Saga (June 20, 2019)
- Rewetting the Ink on Washington’s Industrial Stormwater General Permit: Significant Modifications Coming Down the Pipes (June 20, 2019)
- Seattle's Energy Efficiency as a Service Pilot Program Promises Major Benefits for Building Owners, Utilities, and Conservation (June 19, 2019)
- Washington UTC Finalizes New PURPA Rules Creating New Opportunities for Renewable Energy Developers (June 18, 2019)
- Washington Legislature Provides Spark for Forest Management (June 5, 2019)
- Washington State Passes Climate Bill to Restrict Certain Uses of HFCs (May 22, 2019)
- Water From a Glacier Reaches the Ocean Eventually: Final Decree Issued in the Yakima Water Adjudication after 42 Years (May 13, 2019)
- Enhancements to Washington's Voluntary Cleanup Program Around the Corner (May 10, 2019)
- Washington State Enacts Sweeping Law to Regulate PFAS and Other Chemicals in Consumer Products and Packaging (May 9, 2019)
- Cooke Aquaculture to Pay Full Penalty for Cypress Island Net Pen Collapse (May 3, 2019)
- Washington State Joins Citizen Suit Challenging Navy Ship Decommissioning Under the Clean Water Act (April 25, 2019)
- EPA Looks to Reverse Water Quality Toxics Rule (Or Not)? (April 12, 2019)
- National Marine Fisheries Service to Take Fresh Look at the Effect of Pacific Ocean Salmon Fisheries on Ailing Orcas (April 10, 2019)
- Washington Department of Ecology Proposes Increase to Water Quality Permit Fees (March 19, 2019)
- A Trickle of Movement on New Storage for the Yakima Basin (March 6, 2019)
- Proposed Legislation: Changes to MTCA’s Voluntary Cleanup Program (February 28, 2019)
- Ecology Updates Permits Regulating Atlantic Salmon Farming until Ban Takes Effect in 2022 (February 25, 2019)
- Port of Ridgefield Sues Railroad, Takes Nothing Under MTCA (February 20, 2019)
- EPA Halts Washington State Plan to Regulate Temperatures at Federal Dams (February 14, 2019)
- New Temperature Regulations Proposed for Federal Dams in Columbia and Snake Rivers (February 6, 2019)
- Washington Adopts Rules to Implement California’s Auto Emissions Standards (January 29, 2019)
- Litigation Turns Up the Heat on Agencies to Protect Salmon in the Pacific Northwest (October 23, 2018)
January 16, 2020
Based on the success of the Metered Energy Efficiency Transaction Structure (MEETS) developed at Seattle’s Bullitt Center, the Seattle City Council adopted an ordinance last year directing Seattle City Light (City Light) to enter into pilot projects in up to thirty commercial buildings using an “Energy Efficiency as a Service” (EEaS) contract structure modeled on MEETS. After many months of work, on January 10, 2020, City Light released the final program documents, including a Program Manual, Project Form, Power Purchase Agreement, Customer Participation Agreement, and guidelines for measurement and verification of efficiency gains. Proposals from commercial building owners wishing to participate in the EEaS are due by March 31, 2020. The City Light program will pay in the range of 7.4 to 9 cents per kilowatt-hour of metered efficiency savings with a 2% per year escalator and contracts of up to 20 years.
As the Bullitt Center experience demonstrates, the EEaS/MEETS transaction structure promises to revolutionize energy conservation in commercial buildings. It creates a new revenue stream for commercial building owners and a replicable transaction structure that will permit long-term financing of energy conservation, and much more effective retrofits than have been possible under traditional energy conservation programs.
December 5, 2019
MTCA went into effect in March 1989. The law was the result of Initiative 97 during the 1988 election cycle. According to the initiative’s supporters, the law would create a “toxic cleanup program which will make our environment cleaner and safer, for today and tomorrow.” While the statute provides a general cleanup framework, standards for liability, and a mechanism to raise public funding, the nuts and bolts of contaminated site cleanups were left to the discretion of the Department of Ecology (Ecology) to implement through rulemaking and other agency actions.
Throughout the years, Ecology has completed several substantive rulemakings giving shape to MTCA’s basic directives to identify, inventory, rank, investigate, and remediate contaminated sites. The hundreds of pages of regulations have been supplemented by voluminous policies, procedures, and memoranda, as well as by agency practices and priorities.
Although key features of the cleanup program are fixed by statute, MTCA’s implementing regulations are fundamental to the achievements and limitations of the citizens’ initiative. The critical importance of the MTCA rules in shaping site cleanups is reflected in the extensive rulemaking activities over the last 30 years.
November 19, 2019
Washington’s Voluntary Cleanup Program (VCP), now 22 years old, has been in high demand. Between 1997 and 2015, over 5,000 sites were enrolled in the program. Under the popular program, contaminated sites may be cleaned up independently and voluntarily, with the Department of Ecology (Ecology) providing technical assistance and written opinions on the sufficiency of cleanup under MTCA. Over the last decade, the demand has resulted in long waitlists and challenges in moving a site through the program, particularly in the Puget Sound region where the real estate market has been booming.
Under the VCP, parties pay for the work of the Ecology site manager, with the goal of receiving a No Further Action (NFA) letter from the agency when the investigation and cleanup is complete. NFA letters can provide performing parties, real estate transaction participants, lenders, and other stakeholders with certainty that cleanup requirements have been met. MTCA also envisions that sites may be cleaned up without any agency involvement whatsoever. However, parties may be hesitant to pursue cleanup without agency involvement due to the value of an NFA in real estate and lending markets and concerns that truly independent cleanups will not be deemed adequate should Ecology become involved later.
November 1, 2019
MTCA has been spurring the cleanup of contaminated sites in Washington for 30 years. Since MTCA went into effect, over 7,000 sites have been cleaned up. While the workhorse statute is not going to take a rest anytime soon, with more than 6,000 sites requiring further action before closure and over 200 new sites identified each year, the citizen’s initiative already has amassed an impressive legacy.
October 10, 2019
Ask anyone about Washington’s MTCA and they will tell you it began with citizen action. MTCA started with a community-driven ballot initiative and stakeholder involvement continues to be a foundational element of the program. MTCA is an outgrowth of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). After CERCLA was passed in 1980, states were requested to identify the most contaminated sites for listing on the National Priorities List (NPL). It quickly became clear that CERCLA would not address all the Washington sites. Only a subset of sites in each state would be included on the NPL plus the federal law excluded petroleum-contaminated sites, which comprise a large percentage of the necessary cleanup work in the state.
Recognizing that a state Superfund law was necessary, the Washington Legislature began developing one in the mid-1980’s. As they continued to negotiate an acceptable bill, a coalition of environmental and labor groups used the Initiative process to develop an alternative known as Initiative 97. The two efforts proceeded in parallel. In an interesting political twist, the Legislature passed Senate Bill 6085, which went into effect, but Washington voters chose Initiative 97 and SB 6085 was withdrawn. Initiative 97 was passed in 1988 and became law in 1989. The statue has been amended nearly two dozen times since then.
September 23, 2019
On August 30, 2019, the Colville Tribe submitted a request to the Washington State Department of Ecology seeking to quantify the Tribes’ water rights through general stream adjudications. A general stream adjudication is a judicial process to determine the extent and priority of all of the water rights associated with an entire river or stream system. The Tribe specifically asked Ecology to commence general stream adjudications for the Okanogan and Columbia Rivers. The Columbia is the longest river in Washington and forms a large part of the border between Washington and Oregon. An adjudication of the Columbia would be a massive undertaking.
Although the Tribe has long utilized water from both of these rivers, as well as through other sources, the exact amount or quantity of water subject to the Tribe’s right has not been specified. The Tribe’s request comes just a few months after Ecology completed the Yakima River general stream adjudication, which took forty-two years from initial filing until entry of the final decree. The Department of Ecology is not required to start an adjudication based on this request, however, they will consider the request and decide whether or not to act upon it. If the Department of Ecology chooses to take action on either or both rivers, the resulting adjudications could affect water rights for multiple tribes, municipal governments, countless farmers, citizens, and multiple states. – Author: Lucy Infeld
Washington State has taken its first steps towards implementing the nation’s strongest state chemicals law. This month, the Department of Ecology (Ecology) announced certain chemical-product combinations that it is studying for potential priority designation. Any such designated combinations could be subject to future restrictions or bans. Stakeholders should take advantage of this early opportunity to provide input to Ecology.
September 12, 2019
The Washington State Department of Ecology announced that it will be accepting comments until October 21, 2019, on a preliminary determination to develop a Nutrients General Permit in the Puget Sound. These permits would apply to domestic wastewater treatment plants. The Department of Ecology is hoping to control the nutrients entering the Puget Sound marine and estuarine waters and is seeking comments to determine whether general permits would be the best tool to reduce nutrients in discharges from the domestic wastewater treatment plants. The alternate option would be to pursue the nutrient problem through individual permits.
Ecology decided to take action as a result of high levels of nutrients entering the Puget Sound from wastewater treatment plans. Excess nutrients can lead to plant and algae growth beyond normal levels. Around the country, bodies of water have suffered from excess algae growth, which stresses marine life. Other states have adopted general permits to deal with excess nutrients, focusing on trading and delayed implementation requirements to help wastewater treatment plants come into compliance with general permits. The Department of Ecology hopes to minimize problems for marine life by creating a general permit system. General permits would cover groups of dischargers with similar qualities or within a similar region and would be in addition to the water quality permits required for wastewater treatment plants to operate.
Currently, the Department of Ecology has not provided draft language for the proposed permits. However, interested parties should be aware that permits could impose new compliance requirements and may increase the risk of citizen and government enforcement. – Author: Lucy Infeld
September 5, 2019
Last week, in a decision highlighting the overlay of environmental and corporate law, a Washington federal district court dismissed claims seeking remediation costs, attorneys’ fees, and a declaratory judgment on liability under the Model Toxics Control Act (MTCA) by the current owner of a service station in Cle Elem against Chevron Corp., Chevron USA, Inc., and unnamed “predecessor companies and subsidiaries.” Short Stop Shell, LLC v. Chevron Corp., No. 1:19-cv-03103-RMP, Dkt. No. 43 (E.D. Wash. Aug. 27, 2019) (Order Granting in Part & Denying in Part Defendants’ Mot. to Dismiss & Denying Plaintiff’s Mot. for Summ. J.). The court rejected the allegation that the Chevron entities were corporate successors to Texaco, Inc., which was believed to be responsible for contamination at the service station.
The court’s findings reflect a limitation on the sweeping liability under MTCA and similar statutes, the relevance of corporate transactions in minimizing such liability, and the potential difficulty of identifying proper corporate defendants before filing lawsuits for cost recovery at contaminated sites.
August 12, 2019
The Washington Department of Ecology is planning several amendments to state dangerous waste regulations. The agency’s preproposal statement of inquiry released on August 2, 2019, indicates that the amendments would incorporate federal hazardous waste rules related to the management and disposal of pharmaceuticals, over-the-counter nicotine therapies, and recalled airbags and to the electronic manifest system. The amendments also would clarify recent changes to state regulations that were based on EPA’s Hazardous Waste Generator Improvements Rule and would update Ecology’s Biological Testing Methods for designating state dangerous wastes. The proposed amendments are expected to be published for comment in spring 2020 and to be adopted in fall 2020.
- Pharmaceuticals and Nicotine Replacement Therapies. In February 2019, EPA finalized standards for managing hazardous waste pharmaceuticals for healthcare facilities and reverse distributors. The sector-specific standards are intended to address unique compliance challenges faced by the industry. The standards also limit disposal of pharmaceuticals down drains. Ecology has stated that incorporating the federal regulations would set “consistent, mandatory standards … across the nation” and “result in fewer toxic chemicals in … waterways.”
Ecology also is proposing to follow EPA’s decision to remove over-the-counter nicotine therapies, such as patches, gums and lozenges, from the P075 acutely hazardous waste list, which may help retailers and pharmacies avoid regulation as larger quantity generators.
- Recalled Airbags. In November 2018, EPA released an interim final rule that provides a conditional exemption for airbag waste from federal hazardous waste regulations. Airbag waste may be ignitable and reactive. Ecology has noted that adopting the federal regulation would facilitate the removal of recalled Takata airbag inflators by car dealerships and salvage yards.
- Electronic Manifest System. Ecology is proposing to adopt EPA’s current electronic manifest rules, which were updated in January 2018.
- Waste Generator Rules. In January 2019, Ecology adopted a raft of rules based on EPA’s Hazardous Waste Generator Improvements Rule. According to Ecology, as “the new rules are being implemented, inspectors and the public have noted mistakes and unclear language.” Ecology has not yet identified publicly the mistakes and unclear language that will be addressed in the upcoming rulemaking.
- Updated Biological Testing Methods. Two toxicity tests may be used for designating state dangerous waste. Ecology is planning to eliminate the acute oral rat toxicity test. The agency will update the acute fish toxicity test to make it “more usable and cost effective.”
July 30, 2019
On July 29, 2019, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Winding Creek Solar LLC v. Peterman et al. (Nos. 17-17531 & 32) strongly upholding core principles of the Public Utility Regulatory Policies Act of 1978 (PURPA), and concluding that California’s renewable energy programs fail to meet PURPA requirements. The opinion makes clear that PURPA will continue to play a major role in the expansion of renewable energy, especially for smaller projects that depend on PURPA to obtain access to electric power markets.
July 19, 2019
On July 30, the Washington Utility and Transportation Commission (UTC) and Department of Commerce(Commerce) will initiate the lengthy process of developing administrative rules to implement the newly-enacted Clean Energy Transformation Act (CETA). To meet CETA’s aggressive goals, including eliminating greenhouse-gas emitting electricity generation by 2045, the agencies charged with its implementation will need to adopt and enforce a large number of agency rules over the next several years. The process will begin with a public workshop on July 30.
July 9, 2019
As part of its comprehensive effort to reduce greenhouse gas emissions in Washington, the 2019 legislature adopted a new measure, HB 1257, aimed at reducing greenhouse gas emissions from Washington’s commercial building sector. The new legislation, along with three companion bills – the Washington Clean Energy Transformation Act, which requires Washington’s electric utilities to phase out greenhouse-gas emitting generation by 2045, a bill limiting emissions of hydrofluorocarbons (gases used in refrigeration and other industrial processes), and a bill encouraging electrification of Washington’s transportation system – promise to profoundly change Washington’s energy consumption patterns over the next two to three decades.
HB 1257 adopts a series of legislative changes designed to substantially improve the energy performance of commercial buildings, to encourage the conservation of natural gas and the use of renewable natural gas, and to make new commercial buildings ready for electric vehicle (EV) infrastructure.
July 2, 2019
As part of a package of bills aimed at reducing the state’s greenhouse gas emissions, the 2019 Washington State legislature passed legislation that should accelerate the adoption of electric vehicles (EVs), as well as vehicles fueled with hydrogen and other alternative fuels.
The new legislation, along with three companion bills – the Washington Clean Energy Transformation Act, which requires Washington’s electric utilities to phase out greenhouse-gas emitting generation by 2045, a bill limiting emissions of hydrofluorocarbons (gases used in refrigeration and other industrial processes), and a bill imposing new energy efficiency requirements on commercial buildings – promise to profoundly change Washington’s energy consumption patterns over the next two to three decades.
The electric vehicle legislation took a rather unusual path. Initially, the legislature adopted SHB 1512 in April, which focuses primarily on utility electrification transportation plans. A more comprehensive bill, ESSB 2042 was adopted in May and includes amendments to SB 1512, extensions of several tax credits, and new grant and education programs. Together, the bills substantially change the landscape for EVs and other alternative-fueled vehicles in Washington.
June 28, 2019
The Washington Court of Appeals, Division II, issued a decision on June 26, 2019, finding Ecology’s instream flow rule for the Lower Spokane River invalid under the state Administrative Procedure Act (APA). Ecology had adopted a minimum instream flow rule (the rule) mandating 850 cubic feet per second (cfs) on the lower Spokane River, primarily based on fish habitat analysis. This was lower than the amount desired by various recreational groups, who challenged the rule in Center for Environmental Law and Policy v. Department of Ecology, No. 51439-7-II.
The court found that Ecology violated two prongs of the APA in issuing the rule:
- Ecology exceeded its rulemaking authority.
- Its determination was arbitrary and capricious.
First, Ecology exceeded its rulemaking authority by failing to consider all instream values, as required by the Water Resources Act (WRA). The instream values Ecology must consider under the WRA include wildlife, fish, scenic, aesthetic, and navigational values. RCW 90.54.020(3)(a). The court found that Ecology failed to consider recreational values as part of this analysis. Second, the court found that Ecology’s summary conclusion that “a flow protective of fish also protected other uses of the river” was conclusory, unsupported by the record, and was therefore arbitrary and capricious.
Now that the rule is invalidated, Ecology must go back to the drawing board in its rulemaking process. Since a minimum instream flow rule is an appropriation of water with a priority date of the rule’s effective date, RCW 90.03.345, any future minimum instream flow rule will have an even later priority date. - Author: Rachel Roberts
June 25, 2019
After several years of fruitless effort, Washington’s 2019 legislature passed and Governor Inslee signed the Washington Clean Energy Transformation Act (CETA), which requires Washington’s electric utilities to phase out greenhouse-gas emitting generation. CETA is one of a package of bills passed by the legislature aimed at reducing Washington’s greenhouse gas emissions that includes bills limiting emissions of hydrofluorocarbons (gases used in refrigeration and other industrial processes), imposing new energy efficiency requirements on commercial buildings, and encouraging the use of electricity and alternative fuels in Washington’s transportation system.
CETA imposes three major mandates on Washington utilities, including both investor-owned and consumer-owned utilities, such as PUDs and municipal utilities. First, the legislation mandates that all coal-fired resources must be eliminated from the portfolio of generation resources used to serve Washington consumers by December 31, 2025. Second, all electricity sold at retail in Washington must be greenhouse gas (GHG) neutral by January 1, 2030. Third, all electricity sold in Washington after January 1, 2045, must be produced either from renewable resources or non-emitting generators.
June 20, 2019
On June 6, Washington filed a lawsuit challenging EPA’s May 10, 2019, decision to reverse its 2016 disapproval of Washington’s proposed Human Health Criteria (HHC) under the Clean Water Act (CWA). The lawsuit represents the next chapter in the long-running saga of Washington’s HHC. The respective positions of Washington and the federal government have shifted over time, with Washington now advocating against criteria it once promoted. The potential impact of this dispute on Washington businesses is significant.
The Washington Department of Ecology (Ecology) released the draft 2020 Industrial Stormwater General Permit (ISGP) for public comment. The draft permit contains a number of changes from the existing ISGP, including adding two new industry groups that will require coverage (marine construction, and construction, transportation, and mining equipment rental and leasing), changing the timing of the first flush, and revising requirements for consistent attainment.
Failure to comply with all permit requirements can result in enforcement actions and/or citizen suits. Facilities can minimize risk now by becoming familiar with, and preparing for, the expected permit changes.
June 19, 2019
Based on the success of the Metered Energy Efficiency Transaction Structure (MEETS) developed at Seattle’s Bullitt Center, the Seattle City Council last year adopted an ordinance directing Seattle City Light to enter into pilot projects in up to thirty buildings using an “Energy Efficiency as a Service” (EEaS) contracts modeled on MEETS. After a lengthy administrative process to develop the pilot program, City Light is now ready to roll out the EEaS pilot program. City Light is requesting interested parties to fill out a non-binding Expression of Interest by June 30. The utility expects to release a more formal project solicitation later this summer. This innovative approach to energy efficiency financing promises to unlock deeper levels of energy conservation than have been possible under standard utility incentive programs while creating a profit center for building owners and eliminating the disincentives utilities face under traditional conservation programs.
June 18, 2019
After a lengthy administrative process, the Washington Utilities & Transportation Commission (UTC) on June 12, 2019, issued an order adopting final rules that implement the must-purchase requirements of the Public Utilities Regulatory Policy Act (PURPA) in Washington. The new rules will go into effect in July. Together with the recently-passed Washington Clean Energy Transformation Act, substantial new opportunities for renewable energy development in Washington are likely to be created.
The new rules substantially revise Washington’s implementation of PURPA Section 210, which requires regulated utilities to purchase the output of “qualifying facilities” (QFs) – renewable generators with 80 megawatts (MW) of capacity or less and cogeneration facilities – at “avoided cost” rates. Until now, Washington’s PURPA rules were skeletal, and PURPA projects were nearly non-existent in the state, despite vigorous QF activity in neighboring states.
The new rules improve the existing rules in several key areas, including contract length, legally enforceable obligation (LEO), standard contracts for small QFs, defined avoided costs, and negotiation framework. The new rules create a major opportunity for renewable energy developers in Washington and a means for the state’s utilities to meet the aggressive mandates for a carbon-free generation that have now been established by the Washington legislature.
June 5, 2019
Washington State, having felt the burn from Washington’s recent unseasonably hot summers, has already begun preparations for this year’s wildfire season. In May, Governor Jay Inslee declared an expanded drought emergency covering over 25 watersheds due to low snowpack and predicted drier conditions throughout the summer. Last year, there were 1,732 fires reported in Washington with over $170,000,000 spent in total firefighting costs. In response to the number and intensity of wildfires experienced last season, the legislature took steps to prepare for future wildfire seasons.
On May 8, 2019, House Bill 1784 was signed into law. The bill directs the Washington Department of Natural Resources (DNR) to prioritize forest health. Specifically, the bill requires DNR to “prioritize, to the maximum extent practicable…forest health treatments that are strategically planned to serve the dual benefits of forest health maximization while providing geographically planned tools for wildfire response.” To implement this mandate, the DNR “shall attempt to locate and design forest health treatments in such a way as to provide wildfire response personnel with strategically located treated areas to assist with managing fire response.” The law also provides the DNR with the authority to issue burning permits for wildfire-reduction purposes on lands where the DNR does not have fire protection responsibility. For example, the DNR may enter into cooperative agreements with local fire protection agencies to issue burning permits for reducing wildfire risk within the urban growth area.
Wildfire prevention is at the forefront of many legislator’s minds both in Washington and along the West Coast. Similar bipartisan bills are being proposed along the west coast, as well as in Congress, aiming to tackle topics ranging from wildfire prevention funding to landscape analyses and resource protection. - Authors: Kirstin Gruver, Olivia Parish
May 22, 2019
Following California’s lead, Washington State has revived, at the state level, federal limits on greenhouse gases known as hydrofluorocarbons (HFCs) and is contemplating additional restrictions in the future. HFCs are synthetic gases that are used in a variety of applications, but mainly to replace ozone-depleting substances in aerosols, foams, refrigeration, and air-conditioning. In late April, Washington’s legislature passed HB 1112. Governor Inslee signed the bill into law on May 7, 2019. The core section of HB 1112 adopts as state law the content of EPA’s Significant New Alternatives Policy (SNAP) Rules 20 and 21 (40 CFR Part 82, Appx. U and V) before they were largely vacated by the D.C. Circuit in two decisions.
May 13, 2019
The longest-running (and, for most of its history, the only) water adjudication in Washington State has come to an end. On May 9, 2019, Yakima Superior Court Judge James F. Gavin entered the Final Decree in Department of Ecology v. James Acquavella et al. This 42-year-old case, originally filed in 1977, adjudicated more than 4,000 claims to surface water in the Yakima basin across 31 watersheds. The water rights in 30 of these watersheds, termed “subbasins,” were fully adjudicated in Conditional Final Orders issued over a decade ago, save for one watershed–– Subbasin 23.
May 10, 2019
Last month, with unanimous bipartisan support, Washington legislators passed a bill that will expedite efforts to clean up contaminated sites around the state. The bill, which Governor Inslee signed on April 23, 2019, and goes into effect on July 28, 2019, confirms the Department of Ecology’s authority to implement and recover costs for a program providing accelerated technical advice and assistance, including no further action determinations, under MTCA’s Voluntary Cleanup Program. The law also authorizes Ecology to waive costs under the new program for affordable housing projects after considering the proponent’s ability to pay and the public benefit of the redevelopment.
Ecology proposed the legislation to address the large number of contaminated sites on the Voluntary Cleanup Program waitlist. As of December 2018, the waitlist included over 150 sites. About 800 sites in total were enrolled in the program at the time.
May 9, 2019
The strongest state chemicals bill in the country was signed into Washington state law this week. The law empowers the state Department of Ecology to restrict the use of chemicals in virtually any consumer product and its packaging. The department is first directed to focus on chemicals listed in the law – per- and polyfluoroalkyl substances (PFAS); phthalates; certain flame retardants; polychlorinated biphenyls (PCBs); and phenolic compounds – and then to identify other chemicals for potential restriction.
May 3, 2019
On August 19, 2017, one of Cooke Aquaculture’s largest facilities in Washington—a ten-cage net pen off Cypress Island—collapsed, resulting in the release of 243,000 to 263,000 non-native Atlantic salmon into Puget Sound. Cooke Aquaculture is the largest farmed-salmon producer in North America, and at the time operated eight net pen facilities in Washington. A multi-agency investigation ensued. In January 2018, Ecology issued Cooke a $332,000 penalty for water quality permit violations related to the Cypress Island collapse.
Cooke originally appealed the penalty to the Pollution Control Hearings Board. On Monday, April 29 Ecology announced the parties had reached a settlement. Under the terms of the settlement:
- Cooke will pay the full $332,000 penalty.
- Eighty percent ($265,600) of the penalty will go to a regional salmon enhancement or habitat restoration project.
- Twenty percent ($66,400) of the penalty will go to Ecology’s Coastal Protection Fund, which supports grants to locally sponsored projects that restore or enhance the natural environment.
While the penalty dispute is now resolved, the direct and indirect aftermath of the Cypress Island collapse is not. Cooke faces uncertainty regarding pending permit renewal applications, an undecided Clean Water Act citizen suit resulting from the collapse set for trial in December 2019, and a statutory mandate to phase out Atlantic salmon farming in Washington by 2022. - Authors: Erika Spanton, Kirstin Gruver
April 25, 2019
On April 23, 2019, a federal judge allowed the State of Washington to intervene in a Clean Water Act citizen suit filed by Puget Soundkeeper and the Suquamish Tribe against the U.S. Navy. The dispute centers on the Navy’s cleaning of a decommissioned former aircraft carrier, the Ex-USS Independence, at the Puget Sound Naval Shipyard, near Bremerton, before towing the former carrier to Brownsville, Texas for dismantling.
The Puget Sound Naval Shipyard is an existing Superfund site. According to the Attorney General’s office, the area does not meet standards for human recreation, fish consumption, or protection of aquatic life. During the most recent Five-Year Review of the site, EPA disagreed with the Navy’s determination that the remedy at one of the operable areas within the site was protective in the short term.
The State and the plaintiffs allege that the Navy scraped the 50 dump trucks’ worth of debris from the hull of the Ex-USS Independence while it was docked at the shipyard, without implementing any measures to control debris. This debris may contain hazardous paint residue. The State based its decision to join the case on its review of sediment data before and after the Navy cleaned the hull. Like the plaintiffs, the State brings a claim under the Clean Water Act, but it also brings a claim under the Washington Pollution Control Act, which does not have a citizen suit provision. The case is Puget Soundkeeper Alliance v. U.S. Department of the Navy, Case No. 3:17-cv-05458-RBL.
April 12, 2019
The Trump Administration’s EPA announced plans to reverse an Obama-era rule, which set stringent water quality standards for almost 200 pollutants in Washington State. The 2016 Water Toxics Rule focused on protecting Native American communities, where high levels of fish consumption occur throughout the state. The rule changed the fish consumption rate, which determines cancer risk through exposure to chemicals in locally caught fish. Industry groups and Washington State Republicans argue that the rule was unjustified and too restrictive in raising the state’s fish consumption rate. Industry successfully petitioned the EPA in 2017 to reverse course.
Washington State’s Department of Ecology is pushing back against the decision, saying that the EPA should have consulted with the state and tribes before announcing the change. The EPA opened a public comment period for the proposal on April 8 to reconsider the Water Toxics Rule. However, on April 11, the EPA closed the public comment period and issued a statement that the authority to publish the memorandum on reversing the Water Toxics Rule and open a public comment period was given erroneously. It is unclear whether the EPA will continue to pursue a reversal of the rule.
April 10, 2019
The declining populations of Southern Resident killer whales, also known as Orcas, have been a subject of much scientific and public interest. Washington State’s Orca Task Force identified three key threats to the population: (1) toxic chemicals; (2) disturbance from vessel noise and traffic; and (3) declining Chinook salmons run, which are a primary food source for the whales. See the Task Force’s Report here. The survival of the whales is therefore connected to some of the most pressing environmental issues in the Pacific Northwest. Government measures to protect the population are certain to have cross-cutting implications across the region. For example, HB 1578 is a pending bill reducing threats to Southern Resident killer whales by improving the safety of oil transportation, and HB 1579 another pending bill would implement recommendations of the Orca Task Force related to increasing chinook abundance. Each bill is waiting to be debated on the floor by the second chamber.
A scientific consensus is developing that salmon availability is the primary cause of the whales’ decline. As with the whales, the decline of salmon populations has many causes. One pressure on salmon populations that will be getting a new look as far it contributes to the decline of the whales is ocean salmon fisheries managed under the Pacific Coast Fishery Management Plan. In 2009, the National Marine Fisheries Service issued a biological opinion finding that the fisheries were not likely to jeopardize the whale population. In a guidance letter dated March 6, 2019, the agency committed to re-initiate consultation on the fisheries’ effects on the whales in light of the “substantial amount of new information” about the effects of the abundance of salmon on whales. Less than a month later, environmental groups filed a lawsuit against the agency based on its failure to reinitiate consultation. Center for Biological Diversity, et al. v. National Marine Fisheries Service, et al, 2:19-cv-00487, (W.D.Wa. Apr. 3, 2019). - Author: Casey Clausen
March 19, 2019
The Washington State Department of Ecology (Ecology) has proposed a rule amendment to the Water Quality Permit Fees. Water quality permit programs manage when, where, and how water enters the environment. Under Washington law, Ecology is required to use the permit fees to cover program implementation costs. Individuals who have a wastewater or stormwater discharge permit are required to pay a permit fee. The type of activity dictates the fee amount. Some examples of the industries subject to the permit fee include:
- Aquatic pest control.
- Combined industrial waste treatment.
- Concentrated animal feeding operations.
- Pulp, paper, and paper board operations.
The entire fee schedule can be found here.
Industries that operate within multiple fee categories are charged depending on the category with the highest fee. The collected fees fund the Water Quality Wastewater and Stormwater Discharge Permit programs. To illustrate, some of the collected fees are used to fund inspections, monitoring and evaluating compliance with permits, or reviewing plans and documents directly related to pretreatment programs.
The proposed rule is intended to account for inflation and will allow Ecology to recover expenses in operating and managing the water quality permit programs. Additionally, the proposed rule includes a proposed fee for the winery general permit, a new permit that will take effect in July 2019. Finally, as part of the proposed rule amendment, Ecology is proposing a 75 percent reduction in permit fees for facilities that engage in market research and development of processes that reduce pollution.
March 6, 2019
Like the river on a hot day in August, the Yakima River Basin Water Enhancement Project (YRBWEP) is a slow-moving process. Congress originally authorized YRBWEP in 1979, with major amendments in 1984 and 1994. Congress has now passed the first amendments to YRBWEP of this century in the John D. Dingell, Jr. Conservation, Management, and Recreation Act, which is awaiting President Trump’s signature. These newest amendments would provide additional authorization for Phase III of YRBWEP. Where Phase I and II focused on fish passage and water conservation, respectively, Phase III focuses on increasing storage capacity for the Yakima Basin.
February 28, 2019
For years, Washington’s program for independent site cleanups has been working through a backlog of contaminated sites, particularly in areas of the state where redevelopment interest is high. This year, with HB 1290 in the House, and its companion bill, SB 5285 in the Senate, the Washington legislature is proposing a few tweaks to the Department of Ecology’s Voluntary Cleanup Program (VCP). Similar to the considerations motivating the 2017 law giving authority to the Pollution Liability Insurance Agency to oversee cleanup and provide opinion letters for qualifying petroleum-contaminated sites, the proposed tweaks to the VCP are intended to provide additional administrative options for faster cleanups. The legislation contains several other policy goals, including increased access to affordable housing through brownfield redevelopment. The legislation was sought by Ecology.
The proposed legislation is largely a re-packaging of existing authority. However, new components include:
- An “expedited process” for Ecology review of submissions in the VCP, including NFA letter requests.
- Clarification of Ecology’s ability to recover costs for administering the VCP, including the “expedited process” alternative.
- A voluntary cleanup account for handling funds collected under the “expedited process” program.
- Criteria for when Ecology may waive VCP fees, including, for example, when a “model remedy” is properly deployed at the site, when the site is “used for affordable housing,” and based on the applicant’s “ability to pay.”
- Measures, including property liens, which would prevent “windfalls” if Ecology waives costs.
The bills’ sponsors have indicated that they would like to see Ecology implement the new program expeditiously. The bills would authorize Ecology to “implement the cost waiver and expedited process … through interpretive guidance pending adoption of rules.” If the bills become law, it could provide an attractive option for entities stalled in or contemplating the VCP and may promote the cleanup of properties that otherwise would remain underutilized. – Author: Gus Winkes
February 25, 2019
Last year, the Washington Legislature passed a bill that phased out Atlantic salmon net-pen farming in Washington’s marine waters by 2022. This follows the failure of a commercial net pen in Washington waters where an estimated 243,000 to 263,000 Atlantic salmon escaped. Until then, fish farmers are required to have water quality permits to operate the farms. The Washington State Department of Ecology recently updated the draft water quality permits required for fish farming. As part of the update, Ecology added new requirements farmers must follow, such as, increasing underwater video monitoring of net pens; conducting inspections to assess structural integrity of the net pens; submitting inspection reports certified by a qualified marine engineer to Ecology; improving net cleaning and maintenance procedures to prevent biofouling and fish escape; requiring the permittee to develop site-specific response plans in the event of a fish release, and to conduct and participate in preparedness training; requiring improved maintenance of the net pens; and maintaining contact information to notify area tribes in the event of a fish release.
February 20, 2019
Earlier this month, a federal district court issued a decision allocating cleanup costs at a contaminated site in Clark County, Washington. The opinion illustrates several challenges with fairly apportioning response costs and also demonstrates important strategic maneuvering that often occurs among responsible parties, regulatory agencies, and public officials at complex sites.
February 14, 2019
The U.S. Environmental Protection Agency (EPA) pulled back permits for federal dams on the Snake and Columbia Rivers that were under review by the Washington State Department of Ecology (Ecology). Ecology hoped to use their review as a chance to enforce temperature regulations on the dams. These regulations were intended to cool water temperatures linked to killing salmon in the rivers by requiring federal dams to regulate the temperature of water in dams and ensure they do not exceed the state temperature limit of sixty-eight degrees.
The EPA, however, announced that it was pulling the draft permits under Ecology review, effectively stopping the state’s attempt at enforcing temperature requirements under Washington water quality standards. Ecology still hopes to require temperature regulations at dams and asked the EPA to explain its decision. The EPA’s Region 10 spokesperson stated that the draft permits needed further internal review and that Ecology’s permit review will be reinitiated after EPA completes its internal review.
For more information, see the February 6 update below. – Author: Lucy Infeld
February 6, 2019
According to a report published by the U.S. EPA, temperatures in portions of the Columbia and Snake rivers have increased by almost thirty-five degrees Fahrenheit since 1960. The EPA believes that climate change and dams are responsible for the change in temperature, which can become so high in the summer months that they kill migrating salmon. Currently, Washington State has an uppermost temperature limit of sixty-eight degrees in state water. However, federal dams have not had to comply with this state-based requirement.
The threat of rising water temperatures to salmon and Orcas throughout the Northwest, as well as several lawsuits by non-profits and citizen groups, have pushed the Washington State Department of Ecology (Ecology) to take a more active role in the regulation of dams and requirements for water temperature. On January 30, 2019, in response to EPA’s report, Ecology initiated a public comment period on proposed temperature regulations for federal dams.
While Ecology believes that this new regulation would benefit salmon, it does not provide clear guidance or specifics on how dam operators would comply with the new temperature requirements. Additionally, climate change causes a greater problem for dam operators who are already working to moderate temperatures. Experts at NOAA and within the industry question how much more can be done in the face of climate change.
January 29, 2019
The Washington State Department of Ecology has updated its rules to match revisions to California’s motor vehicle emission standards for greenhouse gases (GHGs) approved by the California Air Resources Board (CARB) on September 28, 2018. These changes include: (1) clarifying that automobile makers who want to sell cars and light-duty trucks in California (and by extension in Washington) for model years 2021 through 2025 would need to meet the existing standards agreed to by California, the federal government, and automakers in 2012; and (2) updated requirements for onboard diagnostic systems to match CARB’s 2015 rulemaking in Section 1968.2 and Section 1968.5. Ecology’s Rulemaking web page is available here. – Author: Dave Weber
October 23, 2018
A pair of court developments in the Western District of Washington places pressure on EPA and the Washington Department of Ecology to issue new water standards for temperature, sediment, and ammonia to protect salmon in Northwest waters.
On October 17, 2018, in Columbia Riverkeeper v. Pruitt, the U.S. District Court for the Western District of Washington held EPA responsible for the absence of enforceable temperature limits in the Columbia and lower Snake Rivers. This is an unusual holding because usually, states are responsible for developing such standards, known as Total Maximum Daily Loads (TMDLs). Under Clean Water Act (CWA) section 303(d), states identify “impaired” waters and develop TMDLs to help repair them. Heat is an important pollutant for fish species like salmon, and both Washington and Oregon have listed the Columbia and Snake Rivers as impaired waters in part due to thermal pollution. In the normal course of events, states develop TMDLs, and EPA’s only role is to approve or disapprove them based on specific criteria.
In Columbia Riverkeeper, the Western District of Washington ruled that EPA, not the states, must develop temperature TMDLs for the Columbia and lower Snake Rivers. The court reached this unique but unsurprising decision based on the history of negotiations and agreements between Oregon, Washington, and EPA. In these negotiations, EPA agreed that it, not the states, would develop temperature TMDLs for these specific rivers. The court held that these agreements, including a Memorandum of Agreement issued in 2000, meant that the states had constructively submitted a “no TMDL” for temperature, and thus it was EPA’s burden to act on those constructive submissions. The court gave EPA thirty days to approve or disapprove this constructively submitted “no TMDL,” although the court indicated that it did “not see how EPA can approve the constructively submitted TMDL consistent with its obligations under the CWA.” If disapproved, EPA has thirty days after disapproval to issue a new TMDL for temperature on these waterways. See U.S.C. § 1313(d)(2).