Northwest Land Matters

Northwest Land Matters

Developments in Energy, Natural Resources & Environmental, Real Estate, and Land Use Law in the Pacific NW

Mazama Pocket Gopher Threatened

Posted in Development, Environmental, Land Use, Municipal

gopherThe Mazama pocket gopher is officially “threatened” in Thurston and Pierce counties.  After many years of debate, environmental studies, and litigation, the U.S. Fish and Wildlife Service (USFWS) finally announced the listing of four subspecies of Mazama pocket gophers as threatened under the Endangered Species Act (ESA), as well as the designation of more than 1,600 acres in Thurston County as critical habitat for the gophers. The agency’s listing and critical habitat decisions could have a significant effect on landowners in Pierce and Thurston counties, subjecting them to potential permitting requirements and restrictions on their ability to develop and use their land.

The decisions are the result of a settlement between USFWS and the nonprofit Center for Biological Diversity, a national conservation organization dedicated to protecting endangered species that had sued the agency to accelerate ESA decisions for 757 species across the country.  And the USFWS’s decisions are likely to be challenged again, including challenges by landowners and businesses as well as challenges by environmental groups.  The National Association of Homebuilders recently sued the USFWS over the process it was using to evaluate the ESA status of the pocket gopher, and on March 31, 2014, that lawsuit was dismissed.  The Center for Biological Diversity, while generally supportive of the listing and critical habitat decisions, expressed disappointment over the agency’s exemption for “activities that clearly destroy these pocket gophers’ homes – like plowing.”

While the outcome of potential litigation over these decisions is hard to predict, it is clear that the pocket gopher will continue to be a major issue for landowners, businesses, and local governments in the South Sound for the foreseeable future.

Marijuana Zoning Issues Heating Up

Posted in Land Use, Municipal, Uncategorized

Medical marijuana is shown in a jar at The Joint Cooperative in SeattleIt appears that getting the green light to operate a marijuana business depends on your zip code. Some local governments in Washington are taking action to ban medical and recreational marijuana operations, while others are permitting or even attempting to encourage marijuana businesses.  Jurisdictions permitting marijuana businesses may be welcoming decisions by others to adopt marijuana bans, which could result in more customers and tax dollars funneled to more pot-friendly jurisdictions.  In the middle ground between banning and encouraging, local governments continue to debate what review processes and other requirements should be imposed for permitted marijuana operations.

On the “banning” side of this issue, the Washington Court of appeals just issued a decision upholding the authority of local governments to ban “collective gardens” for medical marijuana, as the City of Kent did in 2012.  This decision comes on the heels of an opinion issued by the Washington Attorney General concluding that I-502, as drafted and presented to the voters, does not prevent local governments from regulating or banning recreational marijuana businesses in their jurisdictions.

Meanwhile, on the “permitting” side of the issue, the King County Council is considering an ordinance that would amend the zoning provisions for Vashon Island to allow marijuana uses in certain zones.  Due to an apparent oversight by the County when it adopted an ordinance allowing marijuana uses elsewhere in the County, such uses not  allowed under the Vashon Town Plan’s current zoning provisions.  On April 1, the County’s Transportation, Economy and Environment Committee voted to recommend approval of the ordinance to correct this oversight.

The committee voted against recommending an amendment to another ordinance, however, that would have raised the threshold size of an operation requiring a conditional use permit (CUP) from 2,000 square feet to 10,000 square feet.  The CUP process is intended to provide additional notice, opportunity for comment, and the ability for the County to impose conditions to mitigate site-specific impacts of a proposed use.  Sponsors of the amendment argued that the 2,000-square-foot threshold was too low and would impose a costly and time-consuming requirement on small businesses attempting to get a foothold in the burgeoning marijuana industry. Opponents of the amendment preferred to “proceed carefully,” citing the “potential for odors” and other impacts, and argued that the fact that a CUP could cost thousands of dollars, and could delay approval of a marijuana operation for six or more months, did not make the CUP requirement unduly burdensome.

King County and other jurisdictions will likely continue to look at these issues closely, and consider potential amendments to their comprehensive plans and zoning regulations, as the implementation of I-502 continues to unfold.

Federal Agencies Issue Proposed Rule Redefining Clean Water Act Jurisdiction

Posted in Development, Environmental, Land Use, Water Law

Today, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) released the long-awaited Notice of Proposed Rulemaking (NOPR) redefining the federal Clean Water Act’s (CWA) definition of “waters of the United States.”  The NOPR will likely affect project development and operations across the energy, construction, and building sectors.

EPA and Army Corps held a joint conference call this morning to provide a general overview of the NOPR and a short Q&A session.  According to the agencies, the proposed rule will clarify which streams, wetlands and other waters are considered “water of the United States” and, thus, subject to permitting requirements under the CWA. 

The agencies also discussed an “Interpretive Rule” that was released separately today.  The Interpretive Rule addresses certain agricultural permitting exemptions under the CWA and, according to the agencies, is intended to incentivize conservation practices. 

The structure of today’s NOPR is similar to a version of the rule which was leaked in November 2013. However,  the definition of certain key terms included in the NOPR diverge from the leaked draft in ways that are likely to affect the overall reach of this new formulation of “waters of the United States.” Van Ness Feldman is preparing a detailed alert summarizing these changes and discussing the implications of the NOPR, which will be available in the near future.

Tidal-power License Issued for Snohomish County PUD

Posted in Energy, Energy Efficiency/Sustainability, Environmental

On March 20th, Van Ness Feldman client, Snohomish County PUD, received a long-awaited license by the federal government to construct the world’s first grid-connected, tidal-energy project using underwater turbines to produce electricity.

“Tidal energy offers enormous potential as a renewable energy supply.  This Federal license represents a key milestone in the effort to develop the technology to harness this energy,” said VNF Partner Matt Love.  “The Snohomish PUD’s leadership and vision has been instrumental in achieving this milestone.”

Snohomish County PUD and Van Ness Feldman partners Matt Love, Mike Swiger, and Julia Wood, have been working for years to bring tidal energy to the Northwest.  If its pilot is successful, it will be in the forefront of energy technology.

“The Admiralty Inlet Project is an innovative attempt to harness previously untapped energy resources,” Acting FERC Chairman Cheryl LaFleur said. “I look forward to the results of the experimental project and congratulate Snohomish for undertaking it.”

The tidal-energy project in Admiralty Inlet is funded by $13 million in grants from the U.S. Department of Energy, Bonneville Power Administration and federal appropriations. The University of Washington, Pacific Northwest National Laboratory, Sound & Sea Technology and the National Renewable Energy Laboratory are also partners in the project.

Supreme Court Issues Yet Another Decision Requiring LUPA Petitions To Be Filed And Served Within 21 Days

Posted in Uncategorized

On October 2, 2013, the Washington State Supreme Court denied review of a Court of Appeals opinion that affirmed a zoning decision by the City of Tacoma, allowing the Court of Appeals opinion and the City’s zoning decision to stand.

In Northshore Investors, LLC v. City of Tacoma, 301 P.3d 1049 (2013), the Court of Appeals found that a developer’s land use petition challenging the City’s decision under the Land Use Petition Act (LUPA) was not timely because the developer had not served the petition on the City within 21 days after the decision was issued. The Court of Appeals found that the City’s final decision had been issued when the City Council orally announced its decision to adopt, without modification, the findings and conclusions that had been previously prepared by the City’s Hearing Examiner. The Court rejected the developer’s argument that the decision was not issued until several days later, when the City mailed a notice describing the City’s decision. As a result, the developer’s LUPA petition was untimely and the Court of Appeals lacked jurisdiction to review it. This decision is yet another example of Washington courts’ strict application of LUPA’s 21-day appeal period.

It is also a reminder to land use practitioners in Washington that, if there is any doubt about when a land use decision had been issued, you should assume that the LUPA deadline will fall on the earliest possible date, and you should file and serve your LUPA petition accordingly.

White House Memorandum Aims to Speed Up Infrastructure Permitting

Posted in Development, Land Use, Land Use Planning, Municipal

On May 17, the White House issued a memorandum that directs federal agencies to “do what it takes to cut timelines for breaking ground on major infrastructure projects in half.”

The memorandum builds on a March 22, 2012 executive order (Executive Order No. 13604) that aims to facilitate faster regulatory reviews of proposed transportation, water resources, renewable energy, electric transmission, oil and gas pipeline, and other projects.  The memorandum is available here: .

New Legislation Aids Environmental Planning/Development

Posted in Development, Growth Management Act, Land Use, Land Use Planning

The Washington State legislature recently passed a bill that incentivizes upfront environmental planning by local governments and increases SEPA predictability for developers.  This legislation will help ensure infrastructure is installed in a timely manner, consistent with adopted standards, and will add clarity for both the developer and the city on the limits and requirements of recovering costs through latecomer agreements.

The two elements of this bill are important because they improve the development process by first   increasing predictability of SEPA review for certain development types and second, it provides new rules for who builds and who pays for required water and sewer infrastructure. 

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Congressman Norm Dicks Joins Van Ness Feldman

Posted in Environmental, Municipal

Norm Dicks.jpgCongressman Norm Dicks has joined Van Ness Feldman as Senior Policy Counsel.

Working with the firm’s Washington, DC and Seattle offices, Dicks will apply his years in public service to his new role, consulting with clients on a wide range of public policy, strategic, and regulatory issues, particularly those in the environmental sector.  He will work in both the DC and Seattle offices of the firm.

“Van Ness Feldman has an outstanding reputation as one of the premier law firms focused on the nation’s energy, environment, natural resources, and public policy matters.  Like me, the firm has deep roots in both DC and the Pacific Northwest. The culture is one of collaboration among firm professionals and with clients,” said Dicks. “I look forward to joining a team of top-notch professionals committed to providing solutions to those doing business in these industries.”

 

Congressman Dicks was elected to the House in 1976, and represented Washington State’s 6th Congressional District.  During his distinguished tenure in Congress, he received a rare first-term appointment to the House Appropriations Committee, later becoming Chair of the Defense Appropriations Subcommittee and Chair of the Interior Subcommittee.    Dicks retired as the top-ranking Democratic Member of the full Appropriations Committee. 

“As a firm with deep roots in Washington, DC and Washington State, we are honored to have Congressman Dicks join our firm,” said Firm Chairman, Rick Agnew.  “Norm is highly respected for his wisdom, bipartisanship and legislative skills as a senior leader in Congress.  His policy expertise will be a great resource to our clients as well as to his fellow attorneys at the firm.”

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Federal District Court Orders Washington State Agencies to Repair Culverts that Block Fish Passage in Violation of Tribes’ Treaty Fishing Right

Posted in Environmental

Retrofitrock.jpgOn March 29th, the U.S. District Court for the Western District of Washington issued a permanent injunction requiring certain State of Washington (“State”) agencies to provide and maintain fish passage for salmon at numerous culverts under State-owned roads.  United States v. Washington, Case No. 70-9213 (W.D. Wash., Mar. 29, 2013).  The court imposed the injunction as a remedy following its 2007 declaratory order, finding that the State has built and operates stream culverts that block fish passage to and from the Tribes’ usual and accustomed fishing places, and these culverts deprive the Tribes of the fishing rights reserved by the Stevens Treaties.  The court concluded that issuing the injunction will ensure that the State acts “expeditiously” in correcting the barrier culverts, and will provide salmon with access to approximately 1,000 miles of additional stream habitat.

The court emphasized that its ruling is narrowly focused on the State’s specific treaty-based duty to address fish-blocking culverts.  Unless overturned on appeal, this decision could affect significantly the programs and budgets of State agencies as they are required to reprioritize funding to remedy the identified barrier culverts to provide fish passage. 

In addition, notwithstanding the court’s narrow holding, the Tribes could seek broader application of the decision to address other State activities that potentially impact salmon and salmon habitat.

FEMA Developing Procedures for Tribal Governments to Request Disaster Declarations

Posted in Uncategorized

The Federal Emergency Management Agency (FEMA) is soliciting comments on a new proposed rule that could make Federal disaster recovery funding much more accessible to Indian tribes.  The new rulemaking may result in a breakthrough for Indian tribes that wish to work with FEMA, depending on the strength of public comments and FEMA’s efforts to implement the new rule.

FEMA’s immediate objective is to determine whether existing regulatory requirements developed for a Governor’s request for a disaster declaration should be applied to requests from Indian tribal governments and, if changes are warranted, how the pilot program should be developed to account for the unique needs of tribal governments.

One of the most important questions raised in the FEMA announcement is how FEMA should define “tribal areas” and “tribal lands.”  How FEMA resolves this question is particularly important to Alaska Native villages, since the question of what constitutes “tribal lands” has been contentious in Alaska.

For additional information, please contact Dan Press or any other member of our Indian Law Practice group in Washington, D.C. at (202) 298-1800 or in Seattle, WA at (206) 623-9372.