WA Updates

May 13, 2019

Water From a Glacier Reaches the Ocean Eventually: Final Decree Issued in the Yakima Water Adjudication after 42 Years

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.

See the full news alert here. - Author: Rachel Roberts

[Back to Top]

May 10, 2019

Enhancements to Washington's Voluntary Cleanup Program Around the Corner

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.

For additional background information, please see a related alert here. - Authors: Tracy Williams, Gus Winkes

[Back to Top]

May 9, 2019

Washington State Enacts Sweeping Law to Regulate PFAS and Other Chemicals in Consumer Products and Packaging

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.

See the full news alert here. - Authors: Ryan Carra, Nessa Coppinger, Dave Weber

[Back to Top]

May 3, 2019

Cooke Aquaculture to Pay Full Penalty for Cypress Island Net Pen Collapse

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 HolsmanKirstin Gruver

[Back to Top]

April 25, 2019

Washington State Joins Citizen Suit Challenging Navy Ship Decommissioning Under the Clean Water Act

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.

To read the full complaint, click here. - Author: Rachel Roberts

[Back to Top]

April 12, 2019

EPA Looks to Reverse Water Quality Toxics Rule (Or Not)?

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.

To read more about Washington State’s comments, please visit Ecology’s website here. - Author: Lucy Infeld

[Back to Top]

April 10, 2019

National Marine Fisheries Service to Take Fresh Look at the Effect of Pacific Ocean Salmon Fisheries on Ailing Orcas

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 re-initiate 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

[Back to Top]

March 19, 2019

Washington Department of Ecology Proposes Increase to Water Quality Permit Fees

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, or 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.

Public comment closes on April 30, 2019. Ecology’s public notice can be found here. – Author: Kirstin Gruver 

[Back to Top]

March 6, 2019

A Trickle of Movement on New Storage for the Yakima Basin

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.

For an overview of the new amendments, see the full news alert here. - Author: Rachel Roberts

[Back to Top]

February 28, 2019

Proposed Legislation: Changes to MTCA’s Voluntary Cleanup Program

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 

[Back to Top]

February 25, 2019

Ecology Updates Permits Regulating Atlantic Salmon Farming until Ban Takes Effect in 2022

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 (“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.

Public comment closes on February 25, 2019. Ecology’s public notice can be found here, and fish numbers can be found here. – Author: Kirstin Gruver 

[Back to Top]

February 20, 2019

Port of Ridgefield Sues Railroad, Takes Nothing Under MTCA

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.

For an overview of the decision in Port of Ridgefield v. Union Pac. Railroad Co., No. cv-14-6024-RBL (W.D. Wash. Feb. 7, 2019), see the full news alert here. – Authors: Tracy WilliamsGus Winkes 

[Back to Top]

February 14, 2019

EPA Halts Washington State Plan to Regulate Temperatures at Federal Dams

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 

[Back to Top]

February 6, 2019

New Temperature Regulations Proposed for Federal Dams in Columbia and Snake Rivers 

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. 

Public comment closes on February 19, 2019. Ecology’s public notice can be found here. – Author: Lucy Infeld 

[Back to Top]

January 29, 2019

Washington Adopts Rules to Implement California’s Auto Emissions Standards 

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 

[Back to Top]

June 18, 2018

With This Tie, There is a Winner: 4-4 SCOTUS Ruling Results in Victory for Native Americans and a Clear Mandate for Washington to Correct Culverts

In most instances, a tie means there is no winner and no loser. Not so with the U.S. Supreme Court’s 4-4 tie in the “Culverts Case” (one branch of the sprawling U.S. v. Washington case) on June 11, 2018. Instead, by effectively affirming the Ninth Circuit decision below, this tie is a significant win for the United States and twenty-one Native American Tribes (“Tribes”) and a significant loss for Washington State.

While the “Culverts Case” label implies a narrow scope, the potential effects of the Supreme Court’s tie could in fact be widespread and significant—both in Washington and the Pacific Northwest at large.

For an overview of the background and decision, see the full news alert here. - Author: Erika Holsman

[Back to Top]