Northwest Land Matters - Developments in Real Estate, Land Use, Environmental & Water Law in the Pacific NW

Congressman 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 6^th 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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The Environmental Protection Agency is proposing that construction companies use best management practices in lieu of numerical turbidity limits to control the volume and velocity of stormwater runoff to prevent erosion at construction sites.

In the proposed rule, to be published in the April 1 Federal Register, EPA said it will no longer require builders to monitor for turbidity in stormwater runoff and will withdraw numeric turbidity limits that it imposed in 2009.

The new effluent limits emphasizing best management practices are being proposed in response to a December 2012 agreement that EPA reached with builders and utilities to resolve a lawsuit over the stormwater rule for construction sites (Wisconsin Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 12/21/12; 06 DEN A-5, 1/9/13)).

The National Climate Assessment and Development Advisory Committee (NCADAC), of which VNFGD partner TC Richmond serves as Vice Chair, has concluded that the evidence for a changing climate has strengthened considerably since the last National Climate Assessment report written in 2009. Following extensive review by the National Academies of Sciences and by the public, this newly released report will be revised by the NCADAC and, after additional review, will then be submitted to the Federal Government for consideration. 

The NCADAC is a federally-appointed committee tasked with providing a report to the President and the Congress that integrates, evaluates, and interprets the findings of the U.S. Global Change Research Program (USGCRP); analyzes the effects of global change on the natural environment, agriculture, energy production and use, land and water resources, transportation, human health and welfare, human social systems, and biological diversity; and analyzes current trends in global change, both human-induced and natural, and projects major trends for the subsequent 25 to 100 years.

Climate change presents a major challenge for society. This report and the sustained assessment process that is being developed represent steps forward in advancing understanding of that challenge and its far-reaching implications for the nation and the world.

In Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., No. 11-460, decided January 8, 2013, the United States Supreme Court unanimously held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the Clean Water Act (CWA). 

The Court reversed a U.S. Court of Appeals for the Ninth Circuit decision holding that pre-polluted water originating from a navigable river and passing through a “man-made construction” into the natural river below is a “discharge of a pollutant” under the CWA.  The Ninth Circuit’s decision raised concerns for the hydropower industry because dams are man-made constructions in navigable waters that discharge water downstream, and the decision suggested, contrary to well-established precedent, that dams could become subject to National Pollutant Discharge Elimination System (NPDES) permitting under section 402 of the CWA. 

The Court’s decision preserves long-standing precedent that hydropower dams are generally not subject to NPDES permits.  Had the Ninth Circuit’s decision been affirmed, dam operators could have been required to obtain NPDES permits for releases of water, such as power-generation activities or spillway releases.  Because NPDES permits must be obtained every five years, this requirement could interfere significantly with Federal Energy Regulatory Commission-issued long-term licenses that already contain compliance requirements, including water quality conditions under section 401 of the CWA.  Los Angeles County Flood Control District clarifies that the flow of water through a man-made construction (such as a dam, penstock, and/or powerhouse) within the same waterway does not qualify as a discharge of pollutants and does not require an NPDES permit.

This week, Washington Department of Ecology Director Ted Sturdevant issued the following statement on a state Supreme Court ruling upholding a voter-approved funding source for environmental protection and cleanups in Washington state.

"We are pleased that the Supreme Court has upheld a law that Washington voters passed more than two decades ago to make sure that we and future generations have a permanent funding source to clean up and prevent toxic pollution.

“The Hazardous Substance Tax is the key to the success of the voter-approved Model Toxics Control Act. For more than 20 years, this tax has been doing exactly what the voters of our state intended – cleaned up old toxic messes and prevented many new ones in our air and water and land. This is good for families, communities and businesses."

The ruling by the Supreme Court upholds an earlier decision by King County Superior Court finding that the voter-approved tax is constitutional.

In 1988, Washington voters passed Initiative 97, the Model Toxics Control Act (MTCA), which authorized funding for a broad range of state and local toxic cleanup, management and prevention purposes and anticipated the need to respond to new threats from toxic materials. To do this work, the voters authorized a tax on hazardous materials including petroleum products, pesticides, and some chemicals.

Six opportunities totaling over $16.25 million in federal financial assistance were released this week, soliciting proposals in the major program areas of:

• Agriculture
• Alternative and Renewable Energy
• Energy Efficiency
• Public Lands and Natural Resources
• Water

Van Ness Feldman's Federal Funding Resource Center is an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. It compiles active federal funding opportunity announcements in one place for ease of review, and includes a Primer on the federal funding process.  Please feel free to let us know how we can improve this service.

Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years.  The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements, and managing ongoing reporting and compliance requirements.   

The Department of the Interior, in partnership with the Department of Energy, will publish the Final Programmatic Environmental Impact Statement (PEIS) for solar energy development in six southwestern states—Arizona, California, Colorado, Nevada, New Mexico, and Utah.

Key elements include:

• an initial set of 17 Solar Energy Zones on 285,000 acres across 6 Western States;
• a process for industry, the public and other interested stakeholders to propose new or expanded zones; efforts already underway include California’s Desert Renewable Energy Conservation Plan and the West Chocolate Mountains Renewable Energy Evaluation, Arizona’s Restoration Energy Design Project, and other local planning efforts in Nevada and Colorado;
• strong incentives for development within zones, including faster and easier permitting, improved mitigation strategies, and economic incentives;
• a clear process that allows for development of well-sited projects on approximately 19 million acres outside the zones;
• protecting natural and cultural resources by excluding 78 million acres from solar energy development;
• design features (best practices) for solar energy development to ensure the most environmentally responsible development and delivery of solar energy; and
• a framework for regional mitigation plans and a strategy for monitoring and adaptive management; the first mitigation pilot for the Dry Lake Solar Energy Zone is already underway.

The BLM is engaged in ongoing transmission planning efforts, including through the Transmission Expansion Planning Policy Committee and the Western Electricity Coordination Council’s transmission study.

The July 27 Federal Register Notice of Availability for the Final PEIS will begin a 30-day protest period, after which Secretary Salazar may consider adopting the document through a Record of Decision. The BLM released the Draft Solar PEIS in December 2010, and in response to the over 80,000 comments received from cooperating agencies and key stakeholders, issued a Supplement to the Draft Solar PEIS in October 2011.

In April, I provided a summary of SSB 6406, dubbed the Natural Resources Reform Bill.  This Washington State legislation made changes to natural resource and environmental review and permitting, and was passed by the legislature on April 10, 2012.  On May 2, 2012 Governor Gregoire signed the bill into law, but added a signing statement  clarifying one section and explaining her veto of two other sections.

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The Department of the Interior (DOI) has proposed to extend the duration of Endangered Species Act (ESA) “take” permits allowing for non-purposeful disturbance or harm to golden and bald eagles.  If finalized, the rule would extend the term of such permits to thirty years, on the grounds that long-term authorizations are necessary for the financing of renewable energy, transmission, and similar projects.  DOI’s current regulations, issued in 2009, allow energy projects to obtain an eagle take permit for a period of five years if the take is unavoidable and the project has undertaken stringent conservation measures.  DOI will take comments on the proposal until July 12. 

On the final day of the Washington State 2012 Special Session, 2ESSB 6406 was passed by the House and Senate and is on its way to the Governor’s desk.  In a session light on land use issues, some have called this bill the most significant land use bill of the session.  

The bill was able to survive this tough session in part because it introduced new fees and raises existing fees for certain natural resource approvals.  Some specific features of the bill are listed below.   

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We are pleased to announce the launch of our Federal Funding Resource Center – www.vnf.com/funding – an online information tool designed to inform our clients and friends about key energy-, environment-, and resource-related federal funding opportunities across a range of federal agencies including the Departments of Energy, Defense, Agriculture, and the Interior. The Federal Funding Resource Center, which is updated daily, compiles active federal funding opportunity announcements in one place for ease of review. The Federal Funding Resource Center also includes a Primer on the federal funding process.

In addition, our Government Relations team will send weekly funding updates via email every Tuesday to those who are interested in receiving them. To subscribe to our weekly funding email update, please e-mail vnf@vnf.com.

We hope you find the Federal Funding Resource Center useful and we welcome your suggestions for how it could be enhanced. Van Ness Feldman has helped clients secure nearly $3 billion in federal funding for projects in recent years. The firm’s lawyers and policy professionals are experienced in every step of the funding process, including developing and implementing strategies for securing funding from both Congress and federal agencies, assisting with funding applications, negotiating funding agreements and managing ongoing reporting and compliance requirements. For more information on the firm’s capabilities in this area, please contact Shannon Angielski or any other member of the firm’s Federal Funding Practice at 202.298.1800.

The National Wildlife Federation filed a motion in U.S. District Court on Wednesday, asking a judge to stop the U.S. government from issuing any more flood insurance policies for new development in flood-prone areas around the Puget Sound until it changes its flood plain plans to consider the impact on endangered species like salmon and orcas.

The motion for a preliminary injunction is the latest move in a decades-long fight to get the Federal Emergency Management Agency to pay more attention to endangered species, said Jan Hasselman, an attorney for Earthjustice, the environmental law firm that filed a motion in Seattle, on behalf of the National Wildlife Federation.

From my perspective, the real story is that, to date, NWF has not challenged one local jurisdiction’s development regulations as violating the Endangered Species Act,” Lawrence said. “They are trying to achieve through this lawsuit what they have been flatly unable to accomplish through local and state land use regulation development processes.

Molly Lawrence, GordonDerr Partner

Despite the current economic climate, land conservation is on the upswing throughout the country as permanent parks, farms, and nature areas are being established in lieu of development.

The Land Trust Alliance, a national organization representing more than 1,700 nonprofit land trusts across the country, just released its 2010 National Land Trust Census.  According to the Census, state, local and national land trusts had conserved 47 million acres of land as of year-end 2010 – an increase of about 10 million acres since 2005.  The Census also showed that, in Washington State, land trusts have protected 279,478 acres -- a 47% increase in acres conserved since 2005. 

As recently noted in an article by USA Today, a number of factors contributed to these increases, including falling real estate prices, increased federal tax incentives, and the popularity of the voluntary approach taken by land trusts.

A legislative audit committee has issued a report stating that that the Puget Sound Partnership has failed to meet Legislative directives for the restoration of Puget Sound. This report will likely spur the Partnership to move more quickly toward taking concrete action, including advocating for stricter development regulations.

In 2007, the Legislature created the Puget Sound Partnership, a state agency charged with coordinating and leading the effort to restore Puget Sound by 2020. The Partnership was tasked with creating an “Action Agenda” for restoring the Sound.

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A recent article in the New York Times explores a legal battle over impacts of water banking in California.  The dispute is over the practice in dry agrarian areas of storing water underground when flows are plentiful for withdrawal during future drier months.  In central California, where water banks were first established in 1978, the practice has allegedly caused a larger hydrological problems in at least one central valley area. According to some small water systems, the large withdrawals of banked water have purportedly “reversed the area’s underground hydraulic gradient, turning a hill-shaped water table, accessible by shallow wells, into a valley.”  Those water rights holders with shallower wells complain that their supply has been impacted and have filed a lawsuit.

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Without much fanfare, Ecology last month issued its internal guidance for analyzing impacts of greenhouse gas (GHG) emissions during environmental review.  This is the latest round in Ecology’s ongoing effort to identify the role of the State Environmental Policy Act (“SEPA”) in addressing GHG emissions and climate change.  

The guidance document represents Ecology’s effort to stake out its policy and legal objectives broadly and outside of the context of any specific proposals, though the document has no doubt been informed by Ecology’s position in recent administrative litigation and review of specific projects. It is nominally intended to provide internal guidance for Ecology staff when Ecology acts as lead or otherwise reviews a project.  As a practical matter, it will likely be used by other agencies when conducting SEPA review. 

In general, Ecology views SEPA as a gap-filling mechanism to address impacts of GHG emissions until the state or federal government passes more comprehensive legislation governing GHG emissions that many complain has been too long in coming.

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The Skagit Environmental Bank, a privately owned, 400-acre wetland mitigation bank near Mount Vernon, gained certification from the Washington Department of Ecology.  The owner, Clear Valley Environmental Farm LLC, will re-establish and rehabilitate wetlands, enhance upland areas and permanently protect the property through a conservation easement.  The bank will improve water quality, recharge groundwater , decrease erosion and increase the quality and diversity of the aquatic and riverine habitat.

Partner Brent Carson represented Clear Valley through the lengthy entitlement process, successfully obtaining all land use and environmental approvals, defending permits and negotiating agreements with the agricultural community.  Partner Denice Trimble negotiated the terms of the conservation easement and key provisions of the Mitigation Banking Instrument. 

Local, state and federal laws require that wetlands be avoided and impacts minimized before development can occur and wetland mitigation is allowed.  Wetland mitigation banks are an important strategy for engaging the private sector and power of the marketplace to provide a ready supply of credits for mitigation of unavoidable impacts.  These banks also assure that the mitigation will be effective, environmentally sound, established, well managed and sustainable. 

On April 27^th, EPA and the Corps issued new draft guidance for determining whether there is federal Clean Water Act jurisdiction over various streams, wetlands, lakes and ponds.  There is a 60 day comment period before the guidance is finalized and effective.  Previously issued federal agency guidance technically remains in effect, but the agencies appear to be delaying Jurisdictional Determinations until the new guidance is in effect.

Anyone with property containing streams, ponds or wetlands must carefully review the new draft guidance, consider submitting public comments and reassess any prior development strategies that relied upon past guidance and practice for determining Clean Water Act jurisdiction.

The agencies claim that the draft guidance is founded on the legal framework set forth in the SWANCC (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 121 S. Ct. 675, 148 L.Ed.2d 576 (2001)) and Rapanos (Rapanos v. U.S., 547 U.S. 715, 126 S. Ct. 2208, 165 L.Ed.2d 159 (2006)) Supreme Court decisions.  SWANCC prohibited the assertion of federal jurisdiction over isolated ponds based upon the mere presence of migratory birds.  This led to most isolated lakes, ponds and wetlands in the Country being regulated only by those states, such as Washington, that asserted authority to control the filling or discharge of pollutants into these areas.  Justice Scalia’s 4-vote plurality decision in Rapanos recognized federal jurisdiction only over traditional navigable waters, relatively permanent waters, including seasonal streams, and wetlands that directly abutted and had a direct hydrologic connection to these streams.  Under Justice Kennedy’s concurring opinion, federal jurisdiction could be asserted for all waters bodies and wetlands that had a “significant nexus” to traditional navigable waters.  Throughout most of the federal circuits, either Scalia’s “permanent waters” test or Kennedy’s “significant nexus” test could be used to assert jurisdiction.  However, confusion reigned on how permanent was a “relatively permanent” stream and what evidence was needed to establish “significant nexus.” 

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Tomorrow, TC Richmond and Adam Gravley are presenting “Water:  Focusing on Regional Efficiency and Sustainability” , which asks the question - what is “sustainability” in the water resources arena?, at the New Economic Alliance Between Environmental & Business Interests conference--where a dynamic faculty will examine the points of convergence between business and the environment in these new and trying economic conditions. 

Sustainability is a hot buzz word with various and potentially vague meanings.   TC and Adam suggest a five-part “index” to water resources sustainability:  1) water rights certainty, 2) physical source of water certainty, 3) institutional certainty, 4) capacity for environmental certainty, and 5) capacity to deal with uncertainty.  Of course, “certainty” is elusive and aspirational, and any system or project that is “sustainable” will  be dynamic and have the ability to adapt and improve.  

Through the lens of this index, they review some recent regional developments that offer reasons for optimism.  For example, client Cascade Water Alliance and the Lake Tapps water supply project scores highly on the index.  There is also opportunity for business / environmental nexus in water use efficiency and infrastructure and some structural changes in how we think about and regulate water, such as integrating stormwater management and water resources.

FEMA, NOAA-National Marine Fisheries (NMFS), Puget Sound Partnership and other partnering organizations held a two day conference March 1st and 2nd in Edmonds in an effort to help local governments, technical consultants and other NGOs understand options for implementing the Biological Opinion ("BiOP") issued by NMFS in September 2008 regarding FEMA's implementation of the National Flood Insurance Program. 

Approximately 300 people attended the conference, during which representatives of FEMA, NMFS and several local governments rolled out the various process options for local governments to demonstrate compliance with the BiOp by the September 22, 2011 deadline.  In many instances, the conference raised more, or at least as many, questions as it answered,  particularly as federal officials attempt to explain how the BiOp does or does not fit with existing state and local regulations (e.g., the Shoreline Management Act and the Growth Management Act). 

Local governments continue to seek the most efficient means to integrate the BiOp provisions into their regulatory scheme.  At this point, it seems improbable that most local governments will meet the September 2011 deadline.  But property owners and project applicants should except local jurisdictions to step up their BiOp compliance efforts immediately by requiring more habitat assessments, increased mitigation, and in some cases even denying projects that just a few months ago would have survived environmental scrutiny. 

For more information regarding the processes that will be used by local governments over the next several months to implement the BiOp, or how that BiOp implementation may affect your property, feel free to contact me.

The official process has begun for reissuance of Nationwide Permits, which authorize limited fill of U.S. waters, including wetlands.  On February 16, 2011, the U.S. Army Corps of Engineers published in the Federal Register  its proposed revisions to the 50 existing Nationwide Permits and identified two new permits it is considering; one for land based renewable energy generation facilities and another for pilot projects of similar water-based facilities.  In the next few days, each Corps District office will issue its proposed list of changes to Regional Conditions, which may suspend or limit the use of these permits. 

While the Corps is proposing to retain most of the current acreage limitations, for some of the most widely used Nationwide Permits, including NWP 29 for residential development and NWP 39 for commercial and industrial development, the Corps is proposing to add a new requirement that a written determination must be made by the district engineer confirming that the discharge will result in only a minimal adverse effect.  Imposing this new restriction appears redundant, since, by law, Nationwide Permits must cause only minimal adverse environmental effects.  District engineers have always had the discretion under current regulations to require an individual Section 404 permit instead of authorizing fill under a Nationwide Permit, but this was rarely invoked.  The proposed “written determination” requirement could lead to further delays in an already time-consuming process to obtain nationwide permit authorization and may create greater uncertainty for applicants.

Comments on the federal Nationwide Permit proposal must be submitted by April 18, 2011.  A 45 day comment period will follow issuance of each district’s public notice of Regional Conditions.

The 2011 Legislative session is underway and, with the first day's introductions there are a few bills worth noting in the land use/environmental arena:

1. SB 5012 would change the role of the Growth Management Hearings Board, giving less deference to local governments.  This is potentially a significant change in authority of the Growth Boards, since courts often interpret legislative amendments as intending to change jurisprudence coming out of the court decisions.

2. SB 5013 would make the hearing examiner review the default for all local government land use quasi-judicial decisions, removing local “politics” from those decisions.  On the other hand, this approach would eliminate, or at least reduce the potential for political conflicts with the land use permit process.  This may or may not be the best idea, depending on the community.  It also may raise questions of how local governments would be able to pay for this.

3. HB 1088 would limit moratoria authority during comp plan or shoreline plan amendments, which would effectively prohibit what is probably the most typical time that a local government might want to use moratorium to preserve status quo.

4. HB 1054 would declare water conservation practices to be a "beneficial use" of water for purposes of relinquishment.  The bill appears designed to avoid a catch 22 that many users face when considering implementing water conservation measures; better conservation practices reduce the quantity used, which, in turn, may subject the water right to partial relinquishment under the current water code.  HB 1054 appears designed to eliminate this disincentive to better conservation, but is likely to face opposition.

Only time will tell whether any of these bills get enough interest (and broad constituency support) to make it through a legislative session that is otherwise totally focused on budgets and deficits.  Additional bills of interest are likely to surface over the next couple of weeks of the session.

FEMA continues to roll out new floodplain maps in the Puget Sound region, including recent preliminary maps in King, Snohomish, Skagit and Lewis counties.  (The new Pierce County floodplain maps are even further along – ready for final issuance pending final notice in the Federal Register.)  Overall, these maps show significant increases in the size of the mapped floodplains and the water depth in flood events. 

“Because the recession hit at the same moment that all of this started, everybody is asleep at the switch. I’m watching for a collision course, when the first applicant goes in trying to get permit, and they find their property is in flood plain ...they can’t do much of anything.” 

-Molly Lawrence, GordonDerr Partner, PSBJ, Dec. 17, 2010

At the same time, FEMA and the National Marine Fisheries Service continue to work with local jurisdictions to implement significant additional development regulations that will limit options for developing, redeveloping and even repairing some existing developments within the new expanded floodplains.  Developing property in a floodplain is already challenging and will become even more difficult in 2011.

We now know a little more about how the Department of Ecology is responding to Gregoire’s suspension of rule making. On November 30, Ecology Director Ted Sturdevant released an initial determination of affected rules.  He intends to announce a final determination on Monday, December 6. Ecology is seeking comments on its initial determination through this Friday, December 3.

The affected rules run the gamut of Ecology’s authority from water rights administration, to solid waste handling and landfills, to dam safety. You should review Ecology’s lists to determine if any rule making affects you, and if so, consider a comment to Ecology explaining how proceeding with the rule—or postponing any further rule making—over 2011 will impact your operations.  Ecology is accepting electronic comments at rulemaking@ecy.wa.gov.

The initial determination identifies three categories: (1) rules that Ecology will delay development on until 2012; (2) rules that will continue over 2011; and (3) rules that Ecology is waiting for further input from local government, Tribes, and/or the legislature before making a determination.

Please note that the rules slated to proceed in category (2) are in addition to the six rules that Ecology previously identified.