Northwest Land Matters

Northwest Land Matters

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

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.

EPA Proposes Best Management Practices to Control Erosion at Construction Sites

Posted in Development, Environmental, Land Use

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)).

Van Ness Feldman Launches Hurricane Sandy Resource Center

Posted in Development, Environmental, Municipal, Real Estate

Van Ness Feldman is helping clients navigate the complicated and often lengthy process of disaster recovery in the wake of Hurricane Sandy.   The Center’s purpose is to help affected businesses secure federal resources for rebuilding and to keep clients up-to-date with the latest post-Sandy developments in the areas of energy, environmentproject developmentreal-estatefederal funding and public policy.

Click on the links below for detailed information on key federal and state-administered programs tasked with recovery. The Center’s web page will be updated frequently, and we encourage you to contact Tracy Nagelbush, Stuart Hall and Michael Chase of our Hurricane Sandy Resource Task Force for more information or questions regarding specific opportunities.



King County Creates Right Size Parking Tool

Posted in Development, Land Use, Land Use Planning

King County Metro and a team of partners have completed a new online calculator  to help measure parking demand  for multifamily projects in the Seattle-Bellevue area.  This “Right Size Parking” calculator aims to reduce over-building of parking supply in urban King County based on local and context-sensitive data on parking demand.  

According to the Right Size Parking website: “The calculator can help analysts, planners, developers, and community members weigh factors that will affect parking use at multi-family housing sites. It will help them consider how much parking is ‘just enough’ when making economic, regulatory, and community decisions about development.”

Current one-size-fits-all parking policies have contributed to an over-allocation of urban land to parking.  A “Right Size Parking” approach would make more efficient use of urban land, reduce barriers to building mixed-use multi-family residential development in urban centers, reduce housing costs, and contribute to reductions in vehicle miles traveled and greenhouse gases.   

For related research on Right Size Parking approaches see King County Metro’s Right Size Parking project page.

Federal Advisory Committee Releases Draft Climate Assessment Report for Public Review

Posted in Climate Change, Development, Environmental

melting-ice-floating-490x250.jpgThe 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.

Climate, Energy, & Air Update January 2013

Posted in Climate Change, Development, Environmental, Land Use, Water Law

Our Climate, Energy, & Air Update is intended as a general summary of major policy developments that we judge to be of interest to a broad range of our clients and friends.  

This month’s edition features discussion on the following:

  • The D.C. Circuit invalidates the cellulosic biofuel volume requirements for the 2012 Renewable Fuel Standard and rejects requests for rehearing its decision on the Cross-State Air Pollution Rule.
  • The Department of the Interior is reconsidering its regulations for hydraulic fracturing on public lands
  • EPA will reconsider portions of its emission standards for gas wells and gas storage vessels
  • President Obama promises action on climate change in his inaugural address
  • FERC seeks to ease small generator interconnection
  • A bipartisan group of Senators sends a letter to the President urging approval of the Keystone XL pipeline
  • A California court rejected a challenge to the offset protocols in the state’s cap-and-trade regulations.

Supreme Court Reverses Ninth Circuit on Clean Water Act Issue

Posted in Environmental, Water Law

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.

Van Ness Feldman authored an amicus brief for the hydroelectric industry urging the result reached by the Court.