Washington State Environmental Laws

1. Washington State Environmental Laws October 7, 2009 Presented by: Ken Lederman Riddell Williams P.S.

2. Brief overview of important state laws and regulatory framework • Trends in state environmental regulation • Caveats • Won’t be able to cover everything • The real “meat” of the environmental laws in WA is in the adopted rules and regulations • May have to defer in certain areas

3. Types of State Environmental Laws • Command & control • Direct regulation over individual, municipal, and corporate activities • Water Pollution Control Act, Chapter 90.48 RCW • Washington Clean Air Act, Chapter 70.94 RCW • Model Toxics Control Act, Chapter 70.105D RCW • Haz. Waste Management Act, Chapter 70.105 RCW • Forest Practices Act, Chapter 76.09 RCW • Water Law • Groundwater Regulations • Stormwater Regulations

4. Types of State Environmental Laws • Indirect regulation • Requires local governments to adopt rules and to regulate development with state oversight • Growth Management Act, Chapter 36.70A RCW • Shoreline Management Act, Chapter 90.58 RCW • State Environmental Policy Act, Ch. 43.21A RCW

5. Water Pollution Control Act • Ensures protection of all waters of the state for public health and enjoyment • Prevents and controls pollution with all available and reasonable methods • Federally delegated program – 90.48.260 • Ecology carries out with EPA oversight • Point Source Discharge • Non-Point Source Discharge • National Pollution Discharge Elimination Permits (NPDES) • Does not cover energy facilities • Handled by Energy Facilities Site Evaluation Council (EFSEC) • Compensation schedule for NRD resulting from oil spills

6. Water Pollution Control Act • Waters of the State – 90.48.020 • Very broad – covers all fresh and salt water bodies and watercourses AND covers all groundwater resources • Pollution – 90.48.020 • All chemical and biological properties • Changes in temperature, turbidity, etc… • Any contamination or alteration of water • Interpreted very broadly by the courts

7. Water Pollution Control Act • Surface water standards • Classified from AA through C • AA = all water supply, stock, fish habitat, recreation • C = only industrial supply, recreation, commerce, navigation • Effluent Limitation Approach • Discharge Limits (municipal, commercial, and industrial) for Specific Pollutants • Antidegradation • Cannot lower water quality conditions beyond criteria • Mixing Zones • Areas where water quality standards are not met • Must comply with “All Known Available & Reasonable methods of prevention, control, & Treatment” (AKART) • Controversial (verge of extinction?)

8. Water Pollution Control Act • NPDES Permits • Commercial, municipal, and industrial discharges into waters of the state must have NPDES Permit • Local government can develop their own program • Ecology sets water quality standards for State • Coordination with Forest Practices rules and regulations • Enforcement • Any act that causes or tends to cause pollution is unlawful • Includes Organic and Inorganic Matter • Criminal / Civil penalties (Up to $10,000 per day for each violation) • Avoid conversion of agricultural land. RCW 90.48.450

9. Stormwater Controls • Stormwater = Nonpoint source of pollution • The leading source of most environmental contamination of water sources in Washington • 1987 = Congress amends Clean Water Act • Discharge of stormwater from industries and municipalities is a point source requiring an NPDES permit • Washington State Delegated Program - Two Phases • Phase I = NPDES General Permits to cover discharges from sites of 5 or more acres, and municipalities with more than 100,000 people • Phase II = Expansion to all municipalities in urbanized areas, and construction sites from 1-5 acres

10. Stormwater Controls • Permits • Phase I, Phase II Municipal, Construction, Industrial • Requires stormwater management program • Reduce the discharge of pollutants • Reduce harm to receiving waters • Eliminate all inappropriate discharges • Permits are very much in flux right now • PCHB ruling on “LID” stormwater requirements • “Required” where feasible, not just allowable • Parcel and Subdivision Level (not basin/watershed level) • Stormwater Management Manual • Separate manuals for Eastern and Western WA • Guidance for stormwater control measures at applicable sites • Established practices = compliance

11. Water Law • Primary Aspects of Washington (and Western) Water Law • All waters belong to the public, subject to the existing rights of others. RCW 90.03.010 • Private rights may not be acquired when use threatens the public interest. RCW 90.03.290 • Private rights may be obtained from State after evaluation of impact on public interest • Once obtained, your water right is a property right • Cannot be “taken” without just compensation • Can be subject to Condemnation • Appurtenant to the land on which it is used • Cannot be used on other land without a prior approval from state for a transfer. RCW 90.03.380

12. Water Law • Doctrine of Prior Appropriation • “First in time, first in right” • Water right comes into existence only by applying the water to a “beneficial use” • Agriculture, mining, power, industrial, or domestic use • Fixed quantity provided • Any excess use, or “waste” is strictly prohibited • Perfecting a right = Putting it to beneficial use • Priority date of water right is date that you started to pursue it • Perpetuity • Must be continuous use without a period of abandonment

13. Water Law • Water Rights Permit - RCW 90.03.290 • Water is available • Water going to a beneficial use • Water right will not impair other existing rights • No detriment to public interest. • Permit cancelled if you don’t complete the project to which the water is directed in a specific time period • Once the water is put to use, certificate issued • Establishes the important details of the water right • Priority date relates back to date of filing of application

14. Water Law • Permit Changes = New Application • For change of place of use, point of diversion, or purpose of use • Cannot get a change in Quantity • Forfeiture / Relinquishment • Use it or Lose it (5 consecutive years) • Exemptions (including use for municipal supply purposes, litigation, or determined future development) • Groundwater • Separate code - Chapter 90.44 RCW • Applies prior appropriation doctrine to groundwater • NO permit required for stock-watering, watering a ½ acre parcel of land, or for a single domestic use not exceeding 5000 gallons a day • Hydraulic Continuity Principle • Can’t have groundwater if it affects surface water rights. 90.44.030

15. Water Law • Instream flows • Retention of water in waterbodies to protect fish, wildlife, and ecological values (serve both “quantity” and “quality”) • Water Resources Act - Chapter 90.54 RCW • Combines “quality” & “quantity” • “Beneficial use” can include instream uses • All water rights permits are conditioned to protect instream flows necessary to protect ecological values • Metering Statute (RCW 90.03.360) • Reserved rights • WintersDoctrine – Tribal reservations have “implied” water right to carry out purposes for which the reservation was created

16. Water Law • Total Maximum Daily Loads (TMDLs) • Ecology and EPA implement TMDLs for the 303(d) list • Covers all impaired water bodies in WA and ensures water quality standards are met • Must be considered under RCW 90.54, so will affect water rights decisions as well as water quality • Pend Oreille decision (Washington Supreme Court) • A water right does not excuse compliance with Water Pollution Control Act, even if it affects or impacts your water right • Important for energy facilities

17. Water Law • Recent Developments • Dual track water right applications • Two separate lines (1 for water right applications, 1 for changes) • Water conservancy boards • Local boards for water rights changes (change of use, etc…) • NOT for new water rights applications or tribal water rights • Streamlines the process, but raises specter for conflicts • Ecology denied ability to use water-quality laws to limit water rights and/or water withdrawals • Columbia River Initiative (agricultural use + storage) • Municipal Water Law Litigation (Burlingame) • Classified developers who provide water to 15 or more homes or businesses as municipalities for purposes of granting water rights • Question of what Municipalities can “hold back” without abandonment

18. Washington Clean Air Act • Federally delegated program • Standards of Federal Clean Air Act are coordinated to secure benefits of federal funding • NAAQS enforced through state regulatory system • Pollution control • Controls emissions of all airborne contaminants, including dust, smoke, matter, gas, vapor, etc… • Multi-county authorities established to monitor and enforce air quality laws • Example -- Puget Sound Clean Air Agency (PSCAA) • Ecology covers all other areas • Must be as stringent or more stringent than Ecology

19. Washington Clean Air Act • Ecology or board must approve plans and specs for construction of new sources of air emissions • New source review • Replacement or substantial alteration of existing sources • RACT – Reasonably Available Control Technology • Must achieve lowest emission limit possible by application of technology that is reasonably available • All air contaminant sources must obtain renewable permits • 5 years, but can be modified or amended at request of permitee • Local air authority can apply to operate permit system • Includes agricultural burning (wheat, weed, bluegrass, etc…) • Current Issues • Agricultural burning / ADA controversy • New source review (national) • GHG / Western Climate Initiative

20. Model Toxics Control Act • Adopted by Citizen’s Initiative in 1989-1990 (I-97) • NOT a federally delegated program • EPA still has authority to “overfile” and bring in CERCLA • Significant differences between CERCLA & MTCA • Covers oil and petroleum products • No “mistakes” of CERCLA • Lots of public participation • National Contingency Plan vs. “substantial equivalence” • Successful

21. Model Toxics Control Act • Basic legal principles • Strict liability • Joint & several liability • Retroactive • Liability imposed on: (1) owners / operators of contaminated property; (2) generators / arrangers; and (3) transporters of hazardous substances • Potentially Liable Parties (PLPs) • Covers all “releases” of hazardous substances • No requirement of “active” or “intentional” conduct • Limited judicial appeals • No pre-enforcement review

22. Model Toxics Control Act • Parties who are not liable • Innocent landowners • “Plume clause” candidates • Lenders / mortgage holders • Victims of Act of God or Act of War • Victims of acts of third parties (sabotage) • Releases solely from application of pesticides • De minimis (liable, but for a finite amount) • Passive Migration

23. Model Toxics Control Act • Toxics Control Accounts • Tax on petroleum, pesticides, and chemicals • Assist state and local jurisdictions with cleanups • Cleanup Standards (“how clean is clean?”) • Goal = protection of human health and environment • Permanent solutions to maximum extent practicable • Cost / Benefit Analysis (disproportionality test) • No threat to human health or environment • Each medium receives a “Cleanup Level” • Must achieve cleanup level at a “Point of Compliance”

24. Model Toxics Control Act • Cleanup standards • Method A – for the straightforward cleanup • Provides numerical cleanup levels for 25-30 of the most common hazardous substances • Numerical levels set in the regulations • Method B – for the more complex cleanup • Most common method for sites with unusual substances or combinations of substances • More stringent cleanup standards • Sets human-health risk levels for particular substances • Method C – for every other kind of cleanup • When Method A or B levels are not technically possible • Less stringent exposure assumptions – good for industrial sites

25. Model Toxics Control Act • Usual chain of events • Initial investigation + site hazard assessment (1 to 5) • Inclusion on state site hazard list • Identification of PLPs • Phase I & II site assessments (optional) • Determine contaminants and scope of contamination • Remedial Investigation / Feasibility Study (RI/FS) • Determine where contamination has come to be located • Cleanup action plan / interim actions • Long-term monitoring / no further action • Land use restrictions (restrictive covenant / zoning overlay)

26. Model Toxics Control Act • Voluntary Cleanup Program • For “simple sites” (gas stations, single-contaminants, etc…) • Independent cleanup with limited Ecology oversight • Must perform “substantial equivalent” of an Ecology-supervised cleanup • Cost-effective (don’t pay for Ecology’s oversight costs) • Trends • Area-wide contamination • Complex cleanups (Spokane River, Mining Sites, Duwamish Waterway, Lake Roosevelt, ASARCO) • Land Use Restrictions • 5-Year Review

27. Hazardous Waste Management Act • Federally delegated program for enforcement of RCRA • Equivalent or more stringent than federal RCRA • “Cradle-to-grave” regulation of hazardous waste and dangerous waste • Pre-empts local governments • Does not cover domestic sewage, wastewater discharges, agricultural waste, asphalt or wood waste, recycled oil filters, etc.. • Does Cover Recyclables (oil, anti-freeze, E-waste)

28. Hazardous Waste Management Act • Definitions • Dangerous Waste = all discarded or abandoned materials which pose a hazard to human health and environment • Extremely Hazardous Waste = all dangerous waste which: • will persist; • presents a significant environmental hazard; • is highly toxic; • Hazardous Waste = all dangerous waste that “designates” as hazardous waste and all extremely hazardous waste • Listed by adopted regulations • Meets 1 of 4 characteristics: ignitability, reactivity, corrosivity, or toxicity • “Contained in” Waste = for complex mixtures

29. Hazardous Waste Management Act • More stringent that RCRA (broader, less exemptions) • Governs all “Treatment, Storage, & Disposal” Facilities (TSDs) • Enforces the “land ban” • “Manifest” requirements • Small Quantity Generators and Generators of Household Wastes are Exempt from most requirements (Rule of 22) • 220 lbs for DW, 2.2 lbs for EHW • TSD permits for facilities • Meets basic minimum technical standards (liners, GW monitoring, etc…) • “Clean Closure” requirements • Financial assurance requirements • Corrective Action

30. Forest Practices Act • Goal • Sound natural resource protection • Maintenance of forest products industry • Protection of soils, water quality, recreation, scenic beauty, species, etc… • Creation of Forest Practices Board • 11 members • Ecology, Public Lands, CTED, Agriculture, Elected County Legislator, 5 public landowners appointed by the Governor • No local governmental control over forest practices

31. Forest Practices Act • Adoption of Forest Practice Rules • Class I – forest practices that have no direct potential for damaging a public resource • No application or permit needed • Class II – forest practices which have a less than ordinary potential for damaging public resource • May be conducted 5 days after notification with no application or permit needed

32. Forest Practices Act • Adoption of Forest Practice Rules • Class III – anything outside I and II • Must be approved by DNR within 30 days of receipt of application • Class IV – anything outside I and II where a potential for substantial impact is noted • Environmental Impact Statement (EIS) required if DNR determines it to be necessary (all other classes exempt from SEPA) • Must be approved by DNR after EIS and within 30 days of receipt of application

33. Forest Practices Act • Reforestation • Must occur within 3 years after forest activities completed • DNR must review and approve reforestation activities, or additional activities may be required • Conversion • Must notify DNR if land to be forested will be converted to a use other than commercial timber production within 3 years • If so, reforestation requirements do not apply • Enforcement • Includes water quality and forest resource damages • Can include a lien against the property

34. State Environmental Policy Act • Modeled after NEPA • Commits all agencies of state & local government to maintain and improve environmental quality • Full compliance with procedural requirements • Recognition of each person’s fundamental and inalienable right to a healthful environment • Ministerial decisions become discretionary based on environmental consequences • Alternatives must be reviewed, proposed, and analyzed • No substantive requirements • BUT procedural requirements are significant determinants of substantive decision-making

35. State Environmental Policy Act • How it works • Submitting a proposal for development triggers SEPA reqs. • Threshold determination • Documented through an environmental checklist • Primary source of info + documentation repository • Determination of significance (DS) • Reversed on appeal? Only if “arbitrary & capricious” • Determination of non-significance (DNS) • Must be based on demonstration that environmental factors were considered • Reversed on appeal? Only if “clearly erroneous” • Mitigated determination of non-significance - MDNS • Stopping impacts ahead of time

36. State Environmental Policy Act • Determination of Significance • If any action might significantly impact the environment • Very low standard (any moderate effect) • Intensity of development + vulnerability of affected environment • No analysis of socio-economic benefits • No analysis of alternatives at this stage • Begin the scoping process (gathering all documentation) • Prep for the Environmental Impact Statement (EIS) • Notification to any affected party for review & comment

37. State Environmental Policy Act • Environmental Impact Statement • Provides more intense environmental scrutiny of project • Elements = explain the project, the impacts, the alternatives, the short and long term consequences, and the resource commitments • Adequate? Determine if effects and alternatives are sufficiently disclosed and substantiated (rule of reason) • De novo review by court (no deference) • Supplemental EIS if substantial changes proposed or new data is uncovered related to potential environmental impacts • You can use pre-existing or existing documentation • No requirement of redundancy

38. Shoreline Management Act • Designed to strike a balance between pressure for shoreline development and protection of shoreline ecological resources • Unrestricted construction is not in best public interest • Planned and rational effort to balance environmental protection with private property interests • Statewide interest over local interest • Increase and preserve public access

39. Shoreline Management Act • Jurisdiction • 200 feet from the ordinary high water mark • Outside of that, no regulatory control • Once you’re in a little, you’re in for all • Shorelines of statewide significance get greater protection • Designated by Legislature • Development is allowed so long as it is consistent with SMA and the local Master Program • Substantial Development cannot be undertaken without a shoreline permit • Anything over $2500 • Anything that interferes with normal public use • Does not include maintenance or repair • Does not include bulkheads for single family homes • Does not include agricultural activities

40. Shoreline Management Act • State & Local Interaction • Each local government develops a Shoreline Master Plan based on adopted Guidelines from Ecology • Ecology approves each Master Plan • Controls both “development” and “uses” • Local government has “primary” control, with state maintaining necessary oversight to protect the public interest • Local government sets forth shoreline “designations” (natural, recreational, residential, commercial, etc…) in master program • Single family residences are preferred • Local government then administers the SMP • Ecology evaluates permit decisions

41. Shoreline Management Act • Substantial Development Permit • Issued by local governments for construction • Must be appealed by Ecology if inconsistent • Conditional Use Permit • For a conditional use or a change of use • Must be approved by Ecology (Permittee can appeal if denied or conditioned) • Variance • Allowing an otherwise unauthorized development within prohibited area (within an otherwise prohibited area or zone) • Must be approved by Ecology (permittee can appeal if denied or conditioned)

42. Shoreline Management Act • Updated Guidelines • Implementation of performance standards • No reference to ESA requirements, but…. • No effect on agriculture or single family homes • Restoration requirements • Protection of ecological functions and processes • Integration of GMA requirements • Local governments must adopt new guidelines and submit to Ecology for approval • Must inventory all shorelines and revise designations • Money?!?!?!

43. Growth Management Act • Determination of what development is desirable + providing adequate facilities to meet the demand for private development • No “independent” or “isolated” jurisdictions • Coordination + cooperation + integration • Putting public facilities in place before new development occurs • Coordinate private development with public facilities (transportation) • Requirement of “concurrency” in planning / development • Central concept – put growth in existing urban areas • Urban Growth Area (UGA) – permanent + intensive use • Outside a UGA (i.e. rural areas), only low-density development can occur

44. Growth Management Act • Who must comply with GMA? • High-density areas • County with 50,000+ people and 17% increase in population in past decade • County with more than 20% increase in population in the past decade (regardless of current numbers) • Any city with the aforementioned counties • Volunteers • Any city or county can “opt in”

45. Growth Management Act • Basic principles • Adoption of county- and city-wide planning policy • Designation of critical areas, agricultural lands, forest lands, and mineral resource lands • Critical Areas = wetlands, floodplains, water recharge areas, critical habitat areas, hazard zones, etc… • Designation of Urban Growth Areas (UGAs) • Adoption of a comprehensive plan • Must be submitted to state for approval (including amendments) • 7-year Review Process • Intensive development outside of UGA?? • Must meet very specific criteria to prevent development of areas surround the master planned community / resort

46. Growth Management Act • Comprehensive Plan Elements • Land Use – distribution and location of land uses (housing, agricultural, etc…) • Housing – ensure vitality and character of established neighborhoods • Capital Facilities – inventory of current facilities and forecast of future needs • Utilities – location and current / future capacity • Rural – low intensity areas should be protected from conversion into sprawl • Transportation – estimated traffic impacts and future facility / service needs

47. Questions? Please contact me any time with additional questions. Ken Lederman206.624.3600klederman@riddellwilliams.com