Friend Us on Facebook    Follow Us on Twitter

     2015


    Archived News Stories

     2014

     2013

     2012

     2011

     2010

     2009

     2008

     2007

News, Publications & Seminars


2014


DEPARTMENT OF ECOLOGY ISSUES NEW INDUSTRIAL STORMWATER GENERAL PERMIT
December 8, 2014

The Washington State Department of Ecology issued a new Industrial Stormwater General Permit on December 3, 2014. The permit will take effect January 2, 2015. The new permit contains significant changes to sampling parameters, best management practices, and reporting requirements. Permit appeals must be filed within 30 days of receiving notice of the permit’s issuance; appeals are filed with the Pollution Control Hearings Board. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the ISGP and Response to Comments, click here.

TMW’s BRADFORD DOLL TO SPEAK IN PORTLAND AT NORTHWEST ENVIRONMENTAL CONFERENCE
November 7, 2014

Tupper Mack Wells attorney Bradford Doll will speak at the Northwest Environmental Conference in Portland, Oregon on December 9, 2014. NWEC is the region’s largest environmental conference and tradeshow.  Bradford will join Ayn Generes of SoundEarth Strategies and Lian Jewell of Vigor Industrial LLC to discuss new developments in regulation of water quality, the 2015 industrial stormwater permit, and tools for bringing facilities into compliance. For more information, contact Bradford at doll@tmw-law.com

  • For more information about the conference and registration details, click here.
  • To read a story about the conference in Oregon Business magazine, click here.

TUPPER MACK WELLS LISTED IN “BEST LAW FIRMS” BY U.S. NEWS AND WORLD REPORT – Best Lawyers®
November 6, 2014

Tupper Mack Wells PLLC received a Tier 1 ranking for the Seattle Metropolitan area in the fields of Natural Resources Law and Environmental Law in the 2015 Edition of U.S. News & World Report – Best Lawyers®  “Best Law Firms.”  The “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in each field, and review of additional information provided by law firms as part of the formal submission process. Tier 1 rankings reflect a firm’s overall evaluation, derived from a combination of client feedback and comments from other law firms.

According to Best Lawyers, the firms included in the 2015 “Best Law Firms” list “are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.” The 2015 ratings process drew the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have had a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the US. For more information, contact Cara Vallier at vallier@tmw-law.com.

  • To view the Tupper Mack Wells PLLC Best Lawyers®  profile, click here.
  • To view the 2015 “Best Law Firms” rankings in their entirety, click here

JAMES TUPPER NAMED 2015 “LAWYER OF THE YEAR” IN ENVIRONMENTAL LITIGATION IN SEATTLE BY BEST LAWYERS®
November 4, 2014

Tupper Mack Wells congratulates James Tupper on being named 2015 "Lawyer of the Year" for Environmental Litigation in the Seattle area by Best Lawyers®. According to Best Lawyers, “Only a single lawyer in each practice area and designated metropolitan area is honored as the ‘Lawyer of the Year,’ making this accolade particularly significant…lawyers are selected based on particularly impressive voting averages received during the peer-review assessments. Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.” In addition to the 2015 “Lawyer of the Year” award, James is also listed in Best Lawyers in America in the areas of Environmental Law, Environmental Litigation, and Natural Resources Law.

 James Tupper focuses his practice on environmental law, with an emphasis on water quality, water resources, and shoreline development. James has successfully represented business associations and local governments in resolving complex disputes involving stormwater regulation and water resources policy. He frequently represents clients in matters before the Environmental Hearings Office, including shoreline management, water rights, and NPDES permit appeals. He also advises clients regarding hazardous waste cleanup issues in real estate development and financing. James served two terms on the Washington Pollution Control Hearings Board and Shorelines Hearings Board. Since 2006, James has been included on each year’s Washington Super Lawyers® list.  For more information, click here.

  • To view James Tupper’s profile on Best Lawyers, click here.

TMW’s MATTHEW WELLS TO SPEAK AT 7th ANNUAL WATER RIGHTS TRANSFERS CONFERENCE ON NOVEMBER 13, 2014
November 3, 2014

Matthew Wells will be speaking at the 7th Annual Water Rights Transfers Conference presented by The Seminar Group taking place on November 13th and 14th in Seattle. The conference includes a comprehensive introduction and update on water rights, and is structured to compare and contrast procedures for managing water rights and explore current issues that are expected to have a pervasive impact on nearly all water right holders. It will also explain key concepts and practice methods crucial to meeting the needs of water right administrators and practitioners. Matthew’s presentation will focus on the buying and selling of water rights, in particular due diligence matters of title and validity of individual water rights. He will be speaking with Stacey Scriven Bernstein from Perkins Coie LLP. For more information, contact Matthew at wells@tmw-law.com.

  • For more information and registration, click here.

BRADFORD DOLL COMMENTS ON DUWAMISH WATERSHED AND STORMWATER COMPLIANCE IN SEATTLE DAILY JOURNAL OF COMMERCE
October 29, 2014

A recent article in the Seattle Daily Journal of Commerce addresses how potential Washington State revisions to water quality criteria and the State’s Industrial Stormwater General Permit (ISGP) may affect businesses located along the Duwamish waterway. Written by Nathan Hardebeck, stormwater program manager at SoundEarth Strategies, the article includes comments from Tupper Mack Wells attorney Bradford Doll regarding regulatory uncertainties for Duwamish-area permittees in the Washington Department of Ecology’s draft Permit.

Doll explained that ISGP enforcement by EPA, Ecology and environmental groups has increased along the Duwamish and he’s concerned about proposed ISGP requirements that apply to businesses discharging to Puget Sound sediment cleanup sites. Because Ecology has not specifically identified these sites, some dischargers may be left to guess at whether they are covered by the new rules, and some may be exposed to possible citizen lawsuits. Doll stated: “Some businesses will likely find out too late they violated permit requirements they did not know applied to them.” Contact Bradford Doll at doll@tmw-law.com for more information.

  • To view the article, click here.

TMW’s BRADFORD DOLL TO SPEAK AT NORTHWEST MARINE & BOATYARD CONFERENCE
October 28, 2014

Tupper Mack Wells attorney Bradford Doll will speak at the 14th Annual Northwest Marina & Boatyard Conference on November 6, 2014.  The Conference is jointly organized by the Northwest Marine Trade Association and Washington Public Ports Association.  Bradford will address the 2016 Boatyard General Permit, enforcement of the Permit, and development of the revised Washington water quality criteria.   The conference is located at the Kitsap Conference Center at the Port of Bremerton.  For more information, contact Bradford at doll@tmw-law.com.

  • For registration and more conference details, click here.

FEDERAL COURT DECISION:  EPA IS NOT REQUIRED TO ESTABLISH HUMAN HEALTH CRITERIA FOR WASHINGTON STATE
September 22, 2014

On September 18, United States District Court Judge John Coughenour issued an order dismissing a lawsuit by the Puget Soundkeeper Alliance and other environmental groups to compel the U.S. Environmental Protection Agency to set a new fish consumption rate and new human health criteria for the state of Washington. EPA had already determined in 1992 that Washington had failed to properly develop human health criteria and imposed its National Toxics Rule on the state. The National Toxics Rule is still in effect. Washington has nonetheless been working since 2013 to develop the state’s first human health criteria. A preliminary draft rule is anticipated by September 30, 2014, and the formal rulemaking process is expected to commence in 2015.  

The federal court lawsuit was based primarily on a small number of emails and letters from EPA regional staff commenting on the state’s water quality standard review process. EPA and intervenors Department of Ecology, Northwest Pulp & Paper Association, and Manufacturing Industrial Council argued that these communications did not constitute a determination by EPA that the existing state water quality standards are inadequate to protect beneficial uses. The court agreed. Judge Coughenour’s ruling means that EPA is not required to amend its National Toxics Rule as applied to the state of Washington. Tupper Mack Wells PLLC represented intervenor-defendant Northwest Pulp & Paper Association in this lawsuit.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the court’s decision, click here.

JAMES TUPPER TO SPEAK AT 23RD ANNUAL CONFERENCE ON GROWTH MANAGEMENT
September 18, 2014

Law Seminars International will hold its 23rd Annual Conference on Growth Management in Seattle on November 3-4, 2014. The conference will address new developments and interrelationships between the Growth Management Act and other environmental laws and regulations. On Tuesday, November 4, Tupper Mack Wells attorney James Tupper will present Case Law Updates from the Pollution Control Hearings Board and Shorelines Hearings Board. For more information, contact James Tupper at tupper@tmw-law.com.

  • For more information about the conference and registration, click here.

EPA AND ARMY CORPS OF ENGINEERS RELEASE “Q&A” DOCUMENT FOR PROPOSED RULE DEFINING “WATERS OF THE U.S.”
September 11, 2014

This week the U.S. Environmental Protection Agency and Army Corps of Engineers released a “Questions and Answers” document in an effort to explain the agencies’ intent in proposing a new definition of “waters of the United States” for regulatory jurisdiction under the Clean Water Act.  The agencies respond to various questions and criticisms raised so far during the public comment period, including widespread concerns that the new definition will result in expanded regulatory jurisdiction. The agencies admit that the new rule would increase regulatory jurisdiction over “roughly 1,500 acres nationwide” compared to their current practices, but point out that “compared to the agencies’ existing regulations, however, the proposed rule reflects a substantial reduction in waters protected by the CWA as a consequence of recent decisions of the Supreme Court.”  This is because the Supreme Court has required a “significant nexus” to downstream navigable waters before the Clean Water Act can be applied to non-navigable tributaries, wetlands, and other waters. 

The agencies suggest that their “thinking can be improved by hearing from . . . landowners, business people, farmers, scientists, energy companies, conservationists, state and local governments, and others who have valuable experience, clear perspectives, and important information.”  The proposal was published in the Federal Register on April 21, 2014 and the comment period has been extended until Monday, October 20, 2014.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the full Q&A document, click here.
  • To read the proposed rule, click here.  

 


NORTHWEST INDIAN FISHERIES COMMISSION CALLS ON EPA TO DEVELOP REVISED HUMAN HEALTH WATER QUALITY CRITERIA
September 9, 2014

In a September 5, 2014 to Governor Jay Inslee, the Northwest Indian Fisheries Commission (NWIFC) called for EPA to develop human health criteria for the state of Washington under the federal Clean Water Act. Washington is currently covered by the EPA’s National Toxics Rule (NTR) adopted in 1992.  For the past three years Washington has been working toward promulgation of its own criteria to replace the NTR as applied in Washington.

On July 9th of this year, Governor Inslee announced the state’s policy direction for new criteria. This announcement followed over a year of public discussions in the Policy Forum and Delegates Table. The policy uses a fish consumption rate of 175 grams a day and, for carcinogens, a risk factor of one in one hundred thousand (i.e., 10-5). Under the policy direction, however, no criteria will be less stringent than the current criteria under the NTR.

This policy direction reflects a conservative approach to deriving human health criteria under EPA guidance and policy. EPA has repeatedly acknowledged that concentrations of chemicals at a risk factor of one in one million (10-6) to one in ten thousand (10-4) “do not represent a significant risk to the public.”  As recently as 2011, EPA Region 10 said that “EPA’s 2000 methodology states that criteria based on a 10-5 risk level are acceptable for the general population as long as States and authorized Tribes ensure that the risk to more highly exposed subgroups (sports fishers or subsistence fishers) does not exceed the 10-4 risk level.”  This statement was contained in the EPA approval of the Oregon human health criteria. 

EPA has also rejected contentions that criteria developed within this range of risk levels constitutes environmental injustice. “Obviously, as long as there is variability in fish consumption patterns among various segments of the population, it would be impossible for EPA to ensure that all groups would face identical risk from consuming fish. Therefore, EPA has sought to ensure that, after attainment of water quality criteria in ambient waters, no group is subject to increased cancer risks greater than the range EPA has long considered protective…the established acceptable range of 10-4 to 10-6 consistent throughout current EPA program guidance and regulatory actions” (excerpt from EPA approval of the California Toxics Rule, 1999.) This remains EPA policy; in May 2014, EPA announced draft amendments to its 2000 methodology but stated that no changes were being proposed to this risk policy.

In contrast to the NTR which is based on a fish consumption rate of 6.5 grams a day, Washington’s policy direction is based on 175 grams a day – a value that reflects the 99th percentile in a Tribal fish consumption study. Thus, Washington will apply the risk level for the general population to a tribal fish consumption rate. This will ensure that the resulting criteria are equivalent to a consumption rate of 1,750 grams a day at a risk level of 10-4, which is more than three times the protection under the existing NTR (e.g., 650 grams a day at a risk factor of 10-4.) The state is also adopting a conservative risk factor of 10-5 and applying it to a very high tribal fish consumption rate. The state’s current risk factor of 10-6 applies only to the consumption rate of the general population, as EPA established in litigation over the state risk policy in a 1997 decision by the 9th Circuit Court of Appeals.

Governor Inslee’s policy direction is clearly consistent with the EPA policy. The NWIFC incorrectly asserts that the policy direction trades the increased fish consumption rate for “a less protective cancer risk rate.” The letter rejecting the policy asserts that this “approach poses an unacceptable risk to tribal health and the exercise of tribal treaty-reserved rights” but does not explain how it is “unacceptable.” The risk policy, as reflected in the EPA statement above, is well within and in fact beyond the cancer risk range EPA has long considered protective. Ironically, if the NWIFC were successful in getting EPA to modify the NTR as applied to Washington, EPA would utilize the current state risk factor of 10-6 as applied to the general population, resulting in criteria roughly equivalent to or even less protective than the Governor’s policy. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the September 5, 2014 letter from the NWIFC to Governor Inslee, click here.
  • To view James Tupper’s presentation on fish consumption rates, risk policy and environmental justice in Human Health Water Quality Criteria, click here.

DEPARTMENT OF ECOLOGY ISSUES MODIFIED MUNICIPAL STORMWATER PERMITS; COMMENT PERIOD OPEN
August 28, 2014

The Department of Ecology has issued draft modifications to the Phase I and Western Washington Phase II Municipal Stormwater Permits.  The proposed modifications are in response to a March 2014 ruling by the Pollution Control Hearings Board (PCHB). Ecology has also modified the Stormwater Management Manual for Western Washington (SWMMWW) based on the PCHB ruling.

Ecology is accepting written and oral comments on the permits until October 6, 2014, and will have a series of workshops and public hearings in Edmonds and Vancouver, Washington. Ecology prefers comments to be submitted by e-mail to: SWPermitComments@ecy.wa.gov. A workshop and webinar, with no public hearing and requiring advance registration, will be held in Lacey, Washington. A hearing will immediately follow the Edmonds and Vancouver workshops. At each workshop Ecology will explain the permit and manual modifications, and answer questions. For a full schedule of hearings and workshops, visit the Ecology webpage listed below.

Ecology will issue the final modifications after it considers all public comments and makes final changes to the draft Permits and modified Manual. Ecology will publish a response to comments submitted during the public comment period as part of the Fact Sheet accompanying the final modifications. Contact James Tupper for more information at tupper@tmw-law.com.

  • To view the PCHB ruling, click here.
  • To view the Municipal Stormwater Permits on the Department of Ecology’s website, click here.

TUPPER MACK WELLS ATTORNEYS NAMED TO BEST LAWYERS IN AMERICA® 2015; JAMES TUPPER RECOGNIZED AS  “LAWYER OF THE YEAR” IN THE FIELD OF ENVIRONMENTAL LITIGATION IN SEATTLE
August 26, 2014

We are proud to announce that all three principals of Tupper Mack Wells have been selected for listing in the 21st Edition of The Best Lawyers in America® 2015. Matt Wells has been included on the Best Lawyers list for Environmental Law since 2008. Sarah Mack and James Tupper have been selected by their peers for inclusion in the fields of Environmental Law, Land Use and Zoning Law, Litigation, and Natural Resources Law, and James Tupper received special recognition as a “Lawyer of the Year” in Seattle in the area of Environmental Litigation. For more information, contact Matt Wells at wells@tmw-law.com, Sarah Mack at mack@tmw-law.com, or James Tupper at tupper@tmw-law.com.


DEPARTMENT OF ECOLOGY ASKS EPA TO DELAY DRAFT UPDATE TO HUMAN HEALTH CRITERIA
August 13, 2014

The Washington Department of Ecology has submitted formal written comments to the U.S. Environmental Protection Agency (EPA) regarding EPA’s proposed updates to human health criteria for 94 chemicals under the Clean Water Act.  Ecology will take into consideration EPA’s draft updated material as preparation of the draft state rule continues.

Ecology has requested that EPA delay any update to the criteria pending its review of the EPA 2000 methodology for deriving human health criteria. The comment letter discloses that EPA advised state agencies in late June that it intends to start the process to review the EPA 2000 methodology within the next eight months. Ecology asserts that from a “resource standpoint for both EPA and the states, it would make more sense to conduct a major recommended criteria revision after the revisions to the methodology are completed.”

Ecology also questioned EPA’s assertion that criteria are based “solely on data and scientific judgments” pointing out that current EPA policy explicitly provides that criteria are to be based on science, science policy and risk management. Ecology has asked EPA to acknowledge the discretion of states in making risk management policy decisions. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view information about EPA’s draft updated national recommended water quality criteria for human health, click here.
  • To view Ecology’s formal submittal to EPA, click here

TMW’S BRADFORD DOLL TO SPEAK AT NORTHWEST ENVIRONMENTAL BUSINESS COUNCIL LUNCHEON
August 12, 2014 

Tupper Mack Wells attorney Bradford Doll will join Nathan Hardebeck of SoundEarth Strategies as featured speakers at the Northwest Environmental Business Council (NEBC) Olympic Chapter Luncheon regarding the Department of Ecology’s proposed Industrial Stormwater General Permit. The NEBC represents the Northwest’s leading service and technology providers working to protect, restore, and sustain the natural and built environment. The luncheon will be held on September 9th from 11:30am to 1:00pm at McCormick & Schmick’s Harborside, 1200 Westlake Avenue N., Seattle, WA.  Contact Bradford Doll at doll@tmw.com

  • For more information and registration, click here.

GREENHOUSE GAS REPORTING RULE TO BE UPDATED
August 11, 2014

The Department of Ecology is proposing amendments to Washington’s greenhouse gas reporting rule. The rule went into effect Jan. 1, 2011 and the Washington Legislature directed Ecology to periodically update it to maintain consistency with EPA’s rule. The proposed amendments affect power plants, refineries and other industrial facilities that report greenhouse gas emissions.

Ecology will host a stakeholder meeting to gather input from businesses currently reporting greenhouse gas emissions and other interested parties on Thursday, Aug. 28, 2014 from 8:30 a.m. -noon, at Ecology Headquarters in Lacey. For more information, contact Brad Doll at doll@tmw-law.com.

  • For additional information, visit the Greenhouse Gas Reporting Rule Making website here.

“TAKE A SWING AGAINST HUNGER” RAISES $27,000 FOR NORTHWEST HARVEST
August 5, 2014

 Tupper Mack Wells was proud to be a co-sponsor of the July 2014 “Take a Swing Against Hunger” golf tournament benefitting Northwest Harvest.  The $27,000 raised will provide more than 123,000 meals for struggling families in Washington State.  Commitment to community service is encouraged and supported as a core value at Tupper Mack Wells.  For more information, contact James Tupper at tupper@tmw-law.com.


NATURAL RESOURCES DEFENSE COUNCIL PROMOTES WATER CONSERVATION, “GREEN” INFRASTRUCTURE
August 4, 2014

The Natural Resources Defense Council has released an “issue brief” encouraging municipal water conservation as a way of reducing wastewater flows.  Titled “Waste Less, Pollute Less:  Using Urban Water Conservation to Advance Clean Water Act Compliance,” the NRDC issue brief urges EPA and state governments to use Clean Water Act regulatory requirements to achieve reductions in urban water demand.  The NRDC also endorses use of federal financing programs to create and retrofit infrastructure for stormwater infiltration and reuse.  For more information about Clean Water Act requirements, contact James Tupper at tupper@tmw-law.com.

  • To view the NRDC issue brief, click here.

GOVERNOR ANNOUNCES WATER  QUALITY POLICY
July 9, 2014

This morning Governor Inslee announced Washington's human health criteria policy direction. The criteria will be based on a 175 gram/day fish consumption rate, increased from 6.5 grams a day. For carcinogens the state will have a risk policy of 10-5 (one in one hundred thousand). No criteria will be less stringent than the EPA National Toxics Rule. Special provisions will be made for PCBs and arsenic. The state's direction is consistent with EPA policy and will result in higher protection for human health in Washington.

  • To see the Governor’s announcement, click here.

HUMAN HEALTH WATER QUALITY CRITERIA’S FISH CONSUMPTION RATE TIED TO TREATY RIGHTS BY EPA ADMININSTRATOR
July 8, 2014

Are treaty rights at issue if Washington adopts human health water quality criteria based on 175 grams a day and risk policy of one in one hundred thousand?

Dennis McLerran, the regional administrator for EPA Region 10, makes this assertion in a  Seattle Times article today.  McLerran is  quoted as saying, “Some of our high fish consumers when they signed on to transfer (their) lands, signed on to continue to harvest and eat fish, and when and if they can’t, then the treaty right is a bit vacuous.”

Region 10 has been scrambling for the past three months to justify this position as Washington nears a decision on state human health water quality criteria. Ecology staff has presented one option for the criteria based on 175 grams a day and a one in one hundred thousand risk policy.  EPA national policy assumes that criteria based on this approach represent an essentially zero increased risk of cancer from exposure at the resulting criteria levels.  EPA policy further assumes that there is no difference in human health risk from exposure at a risk level of one in one hundred thousand or one in one million. After all, when you get to zero, anything less than zero is still zero.

What is really a bit vacuous here – and probably unlawful under federal and state law – is staking out an extreme position that would cripple Washington businesses and local governments without any basis in science or policy.  For more information on the upcoming fish consumption rate, contact James Tupper at tupper@tmw-law.com.

  • To view the Seattle Times article, click here.

GOVERNOR INSLEE TO ANNOUNCE STATE WATER QUALITY POLICY DECISION ON JULY 9, 2014
July 7, 2014

Governor Inslee’s office has scheduled a meeting with business and local government representatives at 10:00 am on July 9th to announce his much-anticipated policy direction on human health water quality criteria. Last fall the Washington Department of Ecology outlined its recommended alternatives for the roughly 45 chemicals on the national priority pollutants list with toxicity to human health. Ecology proposed using a high fish consumption rate (125, 175 and 223 grams per day) for non-carcinogens and the same rates for carcinogens at a risk policy of one in one million or one in one hundred thousand.

Tupper Mack Wells attorney James Tupper explains how both risk policy rates are considered essentially the same under EPA national policy and appropriate as long as high consuming populations are protected to a level of at least one in ten thousand in his analysis on what policy choice may occur this week. For more information, contact James at tupper@tmw-law.com.

  • To read James Tupper’s assessment of the upcoming human health water quality criteria policy decision, click here.

DEPARTMENT OF ECOLOGY REACTIVATES ITS RECLAIMED WATER RULEMAKING
July 2, 2014

The Department of Ecology has announced a public workshop on Monday, July 14, 2014 from 1:30-3:30 p.m. to begin reactivating its rulemaking process for Reclaimed Water regulations.  Ecology plans to pick up where it left off in 2010 and adopt a new regulation, Chapter 173-219 of the Washington Administrative Code, together with a guidance manual known as the “Purple Book,”within the next two years. Ecology promises a “predictable and efficient” permitting process to encourage reclaimed water projects. For more information, contact Sarah Mack at mack@tmw-law.com.

  • For more details on the workshop, go to Ecology’s Reclaimed Water website.

SNOQUALMIE PASS UTILITY DISTRICT WINS AWARD FOR WASTEWATER TREATMENT
July 1, 2014

Tupper Mack Wells is pleased to represent the Snoqualmie Pass Utility District, one of ten first-time winners of the 2013 Outstanding Wastewater Treatment Plant Awards.  The Washington Department of Ecology issues the awards to treatment plant operators across the state as the “first line of defense to keep waters clean and healthy.” The award-winning plants passed all environmental tests, analyzed all samples, turned in all state-required reports, and avoided permit violations during 2013. According to Ecology, “There are approximately 330 wastewater treatment plants in Washington. When the award program began in 1995, only 14 treatment plants had perfect compliance.” Last year, 126 plants had a perfect compliance record.  For more information, contact James Tupper at tupper@tmw-law.com.

  •  To see the complete list of 2013 wastewater treatment plant award winners, click here.

BRADFORD DOLL AND JAMES TUPPER EXPLAIN CHANGES IN WASHINGTON STATE DEPARTMENT OF ECOLOGY’S DRAFT INDUSTRIAL STORMWATER GENERAL PERMIT
June 30, 2014

Tupper Mack Wells attorneys Bradford Doll and James Tupper explain the upcoming changes stormwater regulation in Washington State in a new article about the draft ISGP. The Department of Ecology’s Industrial Stormwater General Permit ("ISGP" or "Permit") expires at the end of the year, and Ecology has requested public comment on a revised Permit.  This paper addresses the key changes in the draft Permit and highlights compliance issues that all facilities should consider as we move into a new Permit. For more information, contact Brad at doll@tmw-law.com or James at tupper@tmw-law.com.

  • To read the article on the draft ISGP, click here.

NEW YORK TIMES ARTICLE FOCUSES ON CITY OF TACOMA’S EFFORTS AND APPROACH IN COMBATING STORMWATER POLLUTION
June 17, 2014

Last year, environmental engineers working for this city had an unnerving worry. After a decade and tens of millions of dollars devoted to a fastidious cleanup of its corner of Puget Sound, Tacoma’s shore front was in danger of being contaminated with a highly toxic chemical” begins a recent New York Times article focused on the waters of Puget Sound, specifically the City of Tacoma’s efforts in combating stormwater pollution into Commencement Bay.  The use of data points (“ a detailed, continuing and chemically specific picture of what is in seven outlets that flow into the Foss Waterway and then into the Puget Sound, as well as what is in nearly 30 sediment traps that hold storm water from various parts of the city”), a willingness to use economic penalties, and the institution of rain gardens are all part of the approach being used.

  • To read the whole article, click here.

ENVIRONMENTAL PROTECTION AGENCY UPDATES NATIONAL RECOMMENDED WATER QUALITY CRITERIA FOR THE PROTECTION OF HUMAN HEALTH
May 14, 2014

The U.S. EPA has published draft updated national recommended water quality criteria for the protection of human health. Among other changes, the EPA has updated its criteria for 94 chemical pollutants and increased its fish consumption rate to 22 grams/day from the previous 17.5 grams/day. The update is based on EPA’s current methodology for deriving human health criteria as described in ‘‘Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000)” and does not establish new policy.

The draft is available for public comment; the public comment period runs May 13 and ends on July 14, 2014. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the Human Health Ambient Water Quality Criteria Draft 2014 Update Factsheet and detailed information on how to submit comments, click here.
  • For more information from the EPA regarding the update, click here.

ASSOCIATION OF WASHINGTON BUSINESS ANNOUNCES 2014 ENVIRONMENTAL EXCELLENCE AWARD WINNERS
May 14, 2014

The Association of Washington Business (AWB) has announced its 2014 Environmental Excellence Award winners. These annual awards recognize companies “of all sizes and types across the state for their initiative, innovation and outstanding achievements in environmental compliance, protection and conservation.” Categories include Green Enterprise and Technology, Sustainable Communities and Resource Conservation/Pollution Prevention. For several years, Tupper Mack Wells attorney Matt Wells has participated in the selection of outstanding companies for this award. For more information, contact Matt at wells@tmw-law.com.

  • To see the full list of AWB 2014 Environmental Excellence Award winners, click here.

DRAFT INDUSTRIAL STORMWATER GENERAL PERMIT AVAILABLE FOR REVIEW AND PUBLIC COMMENT
May 13, 2014

The Department of Ecology has published and posted on its website a draft Industrial Stormwater General Permit.  Ecology will reissue the final permit on November 19, 2014, and it will become effective January 1, 2015. The public comment period runs through June 20, and in the interim, Ecology will hold workshops and public hearings in Tacoma, Mount Vernon, Moses Lake, Vancouver and Seattle.

According to the Department, the permit applies requirements to approximately 1,200 industrial facilities statewide and key changes include “additional pollution prevention requirements for certain facilities near Puget Sound Sediment Cleanup Sites, such as the Lower Duwamish Waterway and Commencement Bay. The permit also incorporates new federal regulations for airport de-icing at facilities with 1000+ annual jet departures. Other changes are proposed to streamline engineering reports when stormwater treatment systems are needed.  However, the permit is largely unchanged to remain consistent with a 2011 ruling by the state Pollution Control Hearings Board.”

Current permit holders must re-apply for permit coverage by July 1, 2014. Ecology states that it will mail application instructions to all existing permittees this month.

  • To view the draft permit and for more information about how to submit comments and workshop details, click here.

U.S. SUPREME COURT REFUSES TO CONSIDER LOS ANGELES COUNTY APPEAL OF CLEAN WATER ACT MUNICIPAL STORMWATER PERMIT DECISION
May 12, 2014

Tupper Mack Wells attorney Lynne Cohee keeps us updated on the Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. case.  In the latest development in this long-running case, this week the U.S. Supreme Court denied a petition for certiorari filed by Los Angeles County and the Los Angeles County Flood Control District.  The District and County sought review of an August 2013 Ninth Circuit remand decision finding them liable for violations of an NPDES municipal stormwater permit based on evidence of pollution exceedances at mass emissions monitoring stations.  The monitoring stations measure pollutants in stormwater originating from thousands of upstream storm drains, pipes, and outfalls operated by the County, District and thousands of other co-permittees.  In January 2013 the Supreme Court had reversed an earlier Ninth Circuit finding of liability against the District, sending the case back to the Ninth Circuit.  On remand the Ninth Circuit once again ruled in favor of the environmental groups, this time on an entirely different legal theory that it had previously rejected.

The Supreme Court's refusal to review the Ninth Circuit's remand decision is a victory for the environmental groups, but the case still isn't quite over.   Although the Ninth Circuit found the District and County liable, it left to the U.S. District Court the task of determining the appropriate remedy for the permit violations, including which upstream entities are ultimately responsible for the pollutant discharges.  Interestingly, the NPDES permit at issue in the case was updated in 2012.  It no longer relies solely on mass emissions stations, instead requiring water quality monitoring at individual upstream outfall points.

  • To read previous analysis by Lynne in her article published in the December 2013 edition of the Washington Bar Association's Environmental & Land Use Law Section newsletter, click here.

ECOLOGY TO HOST PUBLIC WORKSHOPS FOLLOWING RELEASE OF DRAFT INDUSTRIAL STORMWATER GENERAL PERMIT
April 15, 2014

The Department of Ecology will host public workshops around the state following the release of the draft Industrial Stormwater General Permit (ISGP) Fact Sheet and Permit on April 16, 2014.  Seattle-area workshops will be held on May 19th at 1:00 p.m. in Tacoma and on May 29th at 1:00 p.m. in Seattle at the South Seattle Community College, Georgetown campus.  For more information about anticipated changes to the ISGP, contact Brad Doll at doll@tmw-law.com.

  • For details about the workshops, visit the Department of Ecology ISGP website.

US EPA AND ARMY CORPS OF ENGINEERS PROPOSE CLEAN WATER ACT RULE ON “WATERS OF THE U.S.”
April 2, 2014       

After much speculation and anticipation, the U.S. Environmental Protection Agency and the Army Corps of Engineers have released their draft rule defining “Waters of the United States” under the Clean Water Act.  According to an agency press release, the draft rule clarifies protection of intermittent streams and riparian wetlands, but does not broaden the scope of Clean Water Act jurisdiction or regulate groundwater.  However, the impact of the proposed rule on regulation of wetlands and seasonal waterways remains unclear.  Apparently in response to U.S. Supreme Court decisions that raised questions about the scope of the Clean Water Act, the EPA has linked issuance of the new rule to a peer-reviewed assessment of scientific articles, entitled Connectivity of Streams and Wetlands to Downstream Waters.

There will be a 90-day comment period after the rule is published in the Federal Register. To learn more about the proposed rule, contact James Tupper at tupper@tmw-law.com.

  • To view the EPA webpage describing the rule, which includes the proposed rule and all documents related to this rulemaking, click here.
  • To view the EPA report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, click here.

DEPARTMENT OF ECOLOGY REVEALS POTENTIAL FEATURES OF 2014 INDUSTRIAL STORMWATER GENERAL PERMIT
March 31, 2014

Tupper Mack Wells attorney Brad Doll has written an article about the upcoming release of the draft Industrial Stormwater General Permit (ISGP), expected to be released on April 16, 2014. The Washington State Department of Ecology recently described possible features of a revised Industrial Stormwater General Permit in a series of “listening sessions” held at various locations throughout the State. In this article, Brad summarizes several significant changes that may be made to the Permit and the potential impact upon Permittees. For more information, contact Brad Doll at doll@tmw-law.com.

  • To view the article, click here.

NEW YORK TIMES REPORTS ON THE CHALLENGES OF FISH CONSUMPTION: SORTING OUT WHICH AND HOW MUCH FISH TO EAT
March 25, 2014

“Fish is often called ‘brain food.’ It’s an excellent source of lean protein, rich in nutrients like omega-3 fatty acids, B vitamins and iodine, and pregnant women are encouraged to eat it. There’s just one, ah, catch: Fish also may have mercury, which can harm the developing brain.

Two advocacy organizations sued the Food and Drug Administration last week, demanding that the agency require canned and packaged fish to carry labels informing consumers of the mercury content, and that federal officials force grocery stores and fish markets to display information if they sell fish high in mercury.”

  • This excerpt was taken from a blog in the New York Times. To read the entire article, click here.

TMW’S JAMES TUPPER TO PRESENT AT CONFERENCE ON CLEAN WATER AND STORMWATER ON MAY 6, 2014
March 24, 2014

On May 5th and 6th at the Washington State Convention Center in Seattle, Law Seminars International will host the 14th Annual Comprehensive Conference on Clean Water and Stormwater which will explore “cutting edge developments in water quality litigation, enforcement, and compliance.”   Tupper Mack Wells attorney James Tupper will present on Tuesday, May 6th on the topic of litigation regarding the human health water quality criteria in the state of Washington’s fish consumption rule and its impact on the rulemaking process. To learn more, contact James at Tupper@tmw-law.com.

  • To register for the conference and for more information, click here.
  • To download a PDF of the brochure for the conference, click here.

INLAND EMPIRE PAPER COMPANY OF SPOKANE RECOGNIZED FOR COOPERATIVE APPROACH TO SOLVING WATER QUALITY PROBLEMS
March 19, 2014

The Washington Examiner recently published a column lauding Inland Empire Paper Company of Spokane for its efforts to reduce PCBs in wastewater.  Inland Empire Paper Company recycles old newspapers and magazines to produce paper, but discovered that PCBs that are present in newspaper ink at legal concentrations result in wastewater that cannot meet water quality standards.  Environmental Manager Doug Krapas explained, “When the EPA allows PCBs in products – from dyes used in clothing to paint and newspaper inks – the Toxic Substances Control Act maximum is 50 parts per million.  The stuff coming in is legal.  But in water – industrial waste water and municipal sewage plants – the Clean Water Act allows only 64 parts per quadrillion, more than 700 million times lower than allowed in our source materials.” 

Inland Empire approached this “PCB paradox” by working with local environmental organizations to lobby for rules targeting pigments with PCBs, phasing out manufacture and imports with reasonable timelines to develop inks that won’t cause toxic pollution.  To learn more about effective toxics reduction strategies, contact James Tupper at tupper@tmw-law.com.

  • To view the column in its entirety, click here.

TMW’s BRAD DOLL TO SPEAK AT ADVANCED STORMWATER CASE STUDIES WORKSHOP REGARDING ISGP ENFORCEMENT ON MARCH 6, 2014
February 26, 2014

Tupper Mack Wells attorney Brad Doll will be speaking at ECOSS’ Advanced Stormwater Case Studies Workshop on enforcement actions under Washington’s industrial stormwater general permit (ISGP). The workshop is scheduled for Thursday, March 6, in Tacoma at the Center for Urban Waters. Brad’s presentation will cover recent trends in citizen, EPA, and Ecology enforcement of stormwater permits; reducing facility exposure to enforcement; and responding to enforcement action. For more information, contact Brad Doll at doll@tmw-law.com

  • For registration information and to view the agenda, click here.

2014 FARM BILL RESOLVES NPDES PERMIT CONTROVERSY OVER STORMWATER FROM LOGGING ROADS
February 18, 2014

The Agricultural Act of 2014 (H.R. 2642) was signed by President Obama on February 7, 2014. The bill contains an amendment to the Clean Water Act regarding silvicultural activities, reinforcing that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater runoff from logging roads.

As we posted in our news story in 2013, in Decker v. Northwest Environmental Defense Center and a companion case, Georgia-Pacific West v. Northwest Environmental Defense Center, the U.S. Supreme Court affirmed the Environmental Protection Agency’s determination that stormwater runoff from forest roads is not a “point source” of water pollution requiring a permit under the Clean Water Act. The new law eliminates any remaining uncertainty regarding EPA’s Silviculture Rule.  EPA policy and regulation has emphasized state-supervised best management practices (BMPs) as the preferred method of controlling stormwater runoff from logging roads.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view Section 12313 of the Farm Bill regarding Silvicultural Activities, click here.
  • To view the Agricultural Act of 2014  in its entirety, click here.

DEPARTMENT OF ECOLOGY REVISES DIRECTION ON HUMAN HEALTH WATER QUALITY CRITERIA
February 10, 2014

This morning, at what is likely to be the penultimate Delegates Table meeting, the Washington Department of Ecology announced its current direction in state human health water quality criteria for three toxic chemicals: arsenic, methyl mercury and polychlorinated biphenyls (PCBs).  These chemicals have emerged as a particular concern as Ecology has been under pressure to adopt Washington criteria on the same basis as the state of Oregon.

The regulated community, including business and local governments, has been very concerned that the Oregon criteria for chemicals such as PCBs, if applied in Washington, would impose crippling compliance obligations under water quality permits. Monitoring data indicate that most of Puget Sound from Olympia to the Strait of Juan de Fuca currently would not meet the very conservative Oregon criteria. This could result in a strict prohibition on any new or expanded discharges from individual businesses or local governments within the Puget Sound basin and other broad reaches of the state.

In today’s announcement Ecology indicated that the derivation of criteria for PCBs will be based on tribal fish consumption rates with an adjustment to average weight consistent with EPA guidance and tribal fish consumption studies. Ecology is also proposing to use the risk/hazard toxicity factor used by the Washington Department of Health in developing fish advisories. This approach is consistent with the Washington risk policy for toxic criteria and the US Environmental Protection Agency’s guidance on acceptable risk exposure and provides broad assurance that waters meeting the proposed criteria will be protective to all consumers of fish from state waters.

Kelly Susewind, Deputy Director of Ecology, reported that Ecology has had several discussions including an all-day meeting with EPA Region 10 to review this approach. Angela Chung, head of water quality standards for Region 10, confirmed that EPA headquarters and Region 10 staff views this approach as positive.  EPA’s only concerns are over the approach proposed for arsenic and how Ecology will factor residual source contribution for non-carcinogens. These concerns do not impact the proposed derivation of criteria for PCBs.

The following table is from Ecology’s presentation to the Delegates Table:

Ecology is planning to issue a draft rule for public comment in March and anticipates one additional Delegates Table meeting to review the rule before it is released for public comment. For more information, contact James Tupper at tupper@tmw-law.com.

  • For more information on the presentation, click here.
  • For more information on the development of HHWQC in Washington, click here.

 


WASHINGTON DEPARTMENT OF ECOLOGY LAUNCHES RULEMAKING FOR SPOKANE RIVER INSTREAM FLOW
February 10, 2014

The Department of Ecology has begun the process of developing a new set of water management regulations for the Spokane River and the Spokane Valley Rathdrum Prairie Aquifer.  Although proposed regulations have not yet been publicly released, Ecology has announced that it will establish instream flow levels for the Spokane River.  Ecology is proposing the new water resource management program partially in response to the State of Idaho’s pending adjudication of the Spokane River occurring just across the border. 

The February 2014 issue of the Western Water Law & Policy Reporter includes an article by Tupper Mack Wells attorney Sarah Mack describing Ecology’s announcement and a simultaneous request by several legislators for a suspension of Ecology’s instream flow rulemaking due to the uncertainty created by the Supreme Court’s decision in Swinomish v. Ecology, 178 Wn.2d 571 (2013). For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read the article, click here.
  • To read the letter to Governor Inslee from Sen. Barbara Bailey and other legislators, click here. 

FOSTER V. ECOLOGY:  ANOTHER LOOK AT “OVERRIDING CONSIDERATIONS OF THE PUBLIC INTEREST” IN WATER RIGHT DECISIONS
February 3, 2014

In the wake of the Washington Supreme Court’s decision in Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571 (2013), a decision issued in the spring of 2013 by the Pollution Control Hearings Board (PCHB) is receiving closer scrutiny.  In Foster v. Ecology, the PCHB upheld a new water right issued to the City of Yelm based on the Department of Ecology’s determination that “overriding considerations of the public interest” (“OCPI”) justified a new water right that will conflict with minimum instream flows.

In an article published in the January 2014 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explains how the PCHB’s interpretation of the OCPI exception in Foster foreshadowed the Supreme Court’s highly restrictive view of the exception in the Swinomish case. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read the article, click here

WASHINGTON SUPREME COURT REJECTS “OVERRIDING CONSIDERATIONS OF THE PUBLIC INTEREST” AND INVALIDATES WATER RESERVATIONS FOR OUT-OF-STREAM USES
February 3, 2014

In Swinomish Indian Tribal Community v. Ecology, the Washington Supreme Court has decided that “overriding considerations of the public interest” do not allow the Department of Ecology to create “reservations” setting aside water for future out-of-stream beneficial uses in the Skagit River Basin.  In a broadly-worded opinion stressing the water right status of minimum instream flows necessary for fish, wildlife, scenic, and aesthetic values, the Court has undermined other basin regulations with similar set-asides for domestic, industrial, municipal, or agricultural use.  More importantly, the decision also creates significant uncertainty about the validity of numerous minimum instream flow rules that do not meet the four-part test for a new water appropriation.

In an article published in the December 2013 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack discusses the Court’s interpretation of “overriding considerations of the public interest” as a narrow exception to be used only in extraordinary circumstances.  The article also notes some broader implications of the Court’s decision for Ecology’s existing water management regulations and pending rulemaking activities.  Under the Court’s interpretation of the Water Code, minimum instream flows and reservations are “appropriations” that must meet the four-part test for new water rights.  Many of Ecology’s existing basin regulations include minimum instream flows that cannot satisfy the “water availability” prong of the four-part test.

  • To read the article, click here.

WASHINGTON’S GROWTH MANAGEMENT HEARINGS BOARD WADES INTO WATER LAW
January 31, 2014

Opponents of Washington’s groundwater permit exemption have opened up a new front in their war on exempt wells.  In Hirst v. Whatcom County, the Growth Management Hearings Board ruled that the state Growth Management Act requires Whatcom County to go far beyond Department of Ecology regulations to restrict the use of exempt wells for rural residences.  In an article published in the November 2013 issue of the Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explores the implications of the Growth Board’s decision for water resource management and land use planning.

The Growth Board’s decision is now on appeal before the state court of appeals, which must decide whether the Growth Management Act directive to “protect rural character” effectively overrides explicit groundwater permit exemptions in the Water Code and explicit “single domestic” exemptions from applicable minimum instream flow regulations promulgated by the Department of Ecology. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read the article, click here

CATTLE RANCHER LOSES ENFORCEMENT APPEAL OVER WATER QUALITY VIOLATIONS
January 31, 2014

In a case illustrating some of the challenges and risks of summary judgment practice before the Pollution Control Hearings Board, in August 2013 the Washington Supreme Court ended a lengthy dispute between the State Department of Ecology and Joseph Lemire, a cattle rancher in Columbia County.  In an article published in the September 2013 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack discusses the decision in Lemire v. Ecology, 178 Wn.2d 227, 309 P.3d 395 (2013).

In an 8-1 decision, the Supreme Court agreed with the PCHB that Mr. Lemire had failed to raise a genuine issue of material fact as to whether allowing his cattle access to a stream created a substantial potential for violation of state water quality laws.  Mr. Lemire’s inability to obtain his “day in court” to challenge Ecology’s enforcement order highlights Ecology’s and the PCHB’s inclination toward more frequent use of summary judgment motions to dispose of appeals.  A litigant before the PCHB must present factual assertions in the proper context and focus carefully on the standard of review in order to preserve the opportunity for a hearing on the merits.    

  • To read the article, click here.

LEGISLATIVE BRIEFING ON FISH CONSUMPTION RATES INCLUDES PRESENTATION OF ECONOMIC IMPACT AND FEASIBILITY OF IMPLEMENTATION
January 22, 2014

The Legislature has returned to a new session and one of the first work sessions held was on the topic of fish consumption rates and water quality standards. On January 16, 2014, a presentation regarding the stakes for local governments and businesses based on a study conducted by HDR Engineering, Treatment Technology Review and Cost Assessment, undertaken on behalf of the Association of Washington Cities, Washington Association of Counties and Association of Washington Business, was given to the Senate Committee on Energy, Environment and Telecommunications. The study demonstrated that there are no known technologies to achieve criteria such as the criteria which have been implemented in Oregon and that similar action in Washington could result in crippling compliance costs and restrictions on economic development.   

  • To view the presentation given to the Senate Committee on January 16, 2014, click here.
  • To view the HDR Treatment Technology Review and Cost Assessment study, click here.

TMW’S BRAD DOLL EXAMINES WASHINGTON STATE’S PROPERTY TAX EXEMPTION FOR ANAEROBIC DIGESTERS AND ALTERNATIVE FUELS
January 13, 2014

Intending to encourage the production of electricity, reduce greenhouse gas emissions and retain viable agricultural operations, the Washington State Legislature in 2008 enacted a property tax exemption for anaerobic digesters. Despite the Legislature’s intent, anaerobic digesters are not yet commonplace in Washington, in part because interpretation of the tax exemption has been left up to individual county assessors. 

Tupper Mack Wells attorney Brad Doll has written an article which describes the Legislature's tax exemption, gives recent examples of overly narrow interpretations of the exemption, and provides a starting point for operators of potentially affected facilities to review eligibility for the exemption. For more information, contact Brad at doll@tmw-law.com.

  • To see Brad’s article, click here.

TO THE SUPREME COURT AND BACK AGAIN: THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT CLEAN WATER ACT MUNICIPAL STORMWATER PERMIT
January 7, 2014 

Tupper Mack Wells attorney Lynne Cohee wrote previously about the Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. decision in an article posted on our website last January.  Her recent follow-up to that story – post remand from the U.S. Supreme Court to the Ninth Circuit Court of Appeals – was published in the December 2013 edition of the Washington Bar Association’s Environmental & Land Use Law Section newsletter.

In this article, Lynne examines how the Ninth Circuit on remand took up and reversed its previous ruling on an alternative issue not considered by the Supreme Court. The Court of Appeals focused on the language of the specific National Pollutant Discharge Elimination System (NPDES) permit at issue and held that uncontroverted evidence of pollution exceedances at downstream mass emissions monitoring stations established the Flood Control District’s liability for permit violations as a matter of law.  The case may end up back in the Supreme Court.  The Flood Control District is considering filing a petition for certiorari; its deadline for doing so is January 24, 2014. To learn more about this case, contact Lynne Cohee at cohee@tmw-law.com.

  • To read Lynne’s article, click here.
  • To view the full article in the ELUL newsletter, click here.

2013


JAMES TUPPER TO SPEAK ON FISH CONSUMPTION AT LAKE ROOSEVELT FORUM 2013 CONFERENCE
November 18, 2013

Tupper Mack Wells attorney James Tupper will participate in a panel regarding fish consumption rates at the Lake Roosevelt Forum 2013 Conference on Wednesday, November 20th, 2013 at the Davenport Hotel in Spokane. The Washington State Department of Ecology is continuing to address complex science and public policy issues involved in adopting new human health-based water quality standards and implementation tools. Fish consumption rates have emerged as a critical factor in regulating toxics entering waterways. The panel session will address the latest alternatives being considered by Ecology and provide stakeholder perspectives from industry, municipal, environmental and tribal representatives.

The panel will be moderated by Dave McBride, WA Department of Health, and will feature keynote speaker Catherine O'Neill, Seattle University School of Law, Melissa Gildersleeve, WA Department of Ecology, Nina Bell, Northwest Environmental Advocates, Gary Passmore, Colville Confederated Tribes, and TMW’s James Tupper. For more information contact James Tupper at tupper@tmw-law.com.

  • To see the full agenda and for registration information, click here.

PRESENTATION AT NORTHWEST MARINA AND BOATYARD CONFERENCE ON AVOIDING LAWSUITS FOR DEPARTMENT OF ECOLOGY BOATYARD PERMITTEES
October 29, 2013

Tupper Mack Wells attorney James Tupper will lead a session at the Northwest Marina and Boatyard conference on Thursday, November 7th. The focus of his discussion will center on boatyards’ compliance with the Department of Ecology’s Boatyard Permit, and in particular, the specifics regarding recent notices of intent to sue that have been issued to local boatyards. The conference runs from November 6-8th at the Northwest Maritime Center in Port Townsend. For more information, contact James Tupper at tupper@tmw-law.com.

  • For more on the conference and to register, click here.

JAMES TUPPER GIVES PRESENTATION ON FISH CONSUMPTION RATES, RISK POLICY, AND ENVIRONMENTAL JUSTICE IN HUMAN HEALTH WATER QUALITY CRITIERIA
October 22, 2013

Tupper Mack Wells attorney James Tupper recently gave a presentation at the Northwest Toxics Conference on “Risk Policy, Fish Consumption Rates and Environmental Justice” in setting human health water quality criteria. In his presentation, James explained the derivation of the default fish consumption rate and other assumptions used in the National Toxics Rule, as well as the policy choice involved in setting an acceptable level of increased cancer risk.  Placing in context various alternatives to Washington’s default fish consumption rate, James also examined the potential level of protection provided, the impact on toxics reduction, and implementation challenges for the State of Washington and regulated entities.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the presentation slideshow, click here.

NEW LAWSUIT AGAINST U.S. EPA OVER FISH CONSUMPTION RATE USED IN WASHINGTON STATE WATER QUALITY STANDARDS
October 21, 2013

On October 11, 2013, several organizations, including Puget Soundkeeper Alliance, RE Sources for Sustainable Communities, Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources, filed a lawsuit against the U.S. Environmental Protection Agency (“EPA”) in an effort to force EPA to set new water quality standards for Washington. The plaintiffs allege that Washington State’s existing Clean Water Act standards are inadequate to protect human health because they are based on an assumed fish consumption rate that is too low. 

Plaintiffs seek an order requiring EPA to promptly prepare and publish proposed regulations setting forth a revised fish consumption rate and attendant human health criteria for Washington State and to promulgate the revised standards no later than 90 (ninety) days after publishing the proposed standards, as well as an award of Plaintiffs’ costs and reasonable attorneys’ fees.  For more information on the issue of fish consumption rates and the Clean Water Act, contact James Tupper at tupper@tmw-law.com.

  • To view the Complaint, click here.
  • For an explanation of how fish consumption rates are used together with risk factors to develop human health criteria, click here.

ARTICLE BY JAMES TUPPER AND BRADFORD DOLL ON WATER QUALITY RISK POLICY FOR PROTECTION OF HUMAN HEALTH
October 8, 2013

The Washington Department of Ecology is considering the development of human health criteria for state water quality standards. An important factor in deriving human health criteria for carcinogens is the acceptable risk level used to calculate the criteria. The existing Ecology risk policy protects the general population to a one-in-one million (10-6) increased risk of cancer as long as subpopulations are protected to a level that is no less than a one-in-ten-thousand (10-4) increased risk of cancer. Tupper Mack Wells attorneys James Tupper and Bradford Doll have authored an article reviewing the proposed policy change and history of the risk policy for water quality human health criteria. For more information, contact James Tupper at tupper@tmw-law.com or Brad Doll at doll@tmw-law.com.

  • To view the article, click here.

DEPARTMENT OF ECOLOGY ANNOUNCES OPPORTUNITIES FOR PUBLIC INVOLVEMENT IN WATER QUALITY/TOXICS RULES
October 1, 2013

The Washington State Department of Ecology is in the process of updating the Surface Water Quality Standards for Toxics and has announced two opportunities for public involvement. Ecology will host a telephone conference on Wednesday, October 9, from 9:30 a.m. to 3:30 p.m. The primary focus of the teleconference will be the Delegates' Table conversation, which will be open to the public.

The second opportunity for public input will be the Water Quality Standards meeting on November 6, 2013 from 9:00 a.m. to 4:30 p.m. According to the DOE, this will be “an interactive webinar to present conceptual ideas and options for human health criteria development and implementation tools.” Participants may also attend in person in Lacey, Washington. For more information, contact James Tupper at tupper@tmw-law.com.

  • Free October 9th teleconference registration is available online by clicking here.
  • Free November 6th webinar registration is available online by clicking here.

WASHINGTON STATE HEALTH DEPARTMENT ISSUES FISH CONSUMPTION ADVISORY FOR COLUMBIA RIVER SPECIES
September 30, 2013

On September 23rd, the Washington State Department of Health and the Oregon Health Authority issued fish consumption advisories for resident fish in certain parts of the Columbia River, specifically, near the Bonneville Dam and middle Columbia River due to elevated levels of mercury and polychlorinated biphenyls (PCBs) found in fish tissue. Salmon, steelhead, and American shad are not affected by the advisories. Both departments stress that it is important to increase awareness but equally important to “keep fish on the table.”

The advisory press release states: “Health officials from both states continue to encourage people, including pregnant women, to eat a variety of fish as part of a healthy diet. Migratory fish such as salmon and steelhead are an essential source of protein, omega-3 fatty acids and other nutrients, and are low in contaminants.”  Toxicologist David Farrer, Ph.d., of OHA’s Public Health Division, is quoted as saying “Our iconic salmon, steelhead and other migratory fish are fine. People still need to eat at least two meals of fish per week.”

  • To view the Columbia River fish consumption advisory press release, click here.
  • To go to the Washington State Department of Health website concerning fish consumption, click here.

SENATE ENERGY, ENVIRONMENT AND TELECOMMUNICATIONS COMMITTEEE RECEIVES PROGRESS REPORT AND TESTIMONY ON PROPOSED STATE WATER QUALITY STANDARDS REVISIONS
September 25, 2013

On Monday, September 23, members of the Senate Energy, Environment and Telecommunications Committee heard from the Department of Ecology and Tupper Mack Wells attorney James Tupper on the topics of state Water Quality Standards and Fish Consumption Rate revisions.  Kelly Sussewind, Department of Ecology, presented a progress report on the process of developing Human Health Criteria, and James Tupper specifically addressed the complex challenges to Fish Consumption Rate computation and compliance as a policy matter.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the presentation and testimony on TVW, click here.
  • To read coverage of the work session, Fish Consumption Battle Set to Resume Next Session, click here.
  • To review the 2013 Final Technical Support document, click here.

BRADFORD DOLL TO SPEAK THIS FRIDAY AT WASHINGTON PUBLIC PORTS ASSOCATION’S ENVIRONMENTAL SEMINAR
September 24, 2013

This Friday, September 27th, Tupper Mack Wells attorney Bradford Doll will speak at the Washington Public Ports Association’s Environmental Seminar in Vancouver, Washington. The Seminar, to be held on September 26th and 27th, explores challenges facing Washington ports including stormwater compliance, dredging and sediment management standards, and the significance of the Gateway project’s SEPA scope for ports. Bradford will discuss how ports can reduce their exposure to citizen suits under the Clean Water Act, and considerations for responding to a citizen lawsuit. For more information, contact Bradford Doll at doll@tmw-law.com.

  • To view the agenda and register for the conference, click here.

JAMES TUPPER TO SPEAK AT NORTHWEST TOXICS CONFERENCE ON SEPTEMBER 26, 2013
September 20, 2013

Tupper Mack Wells attorney James Tupper will be among the presenters at the Northwest Toxics Conference sponsored by the Environmental Law Education Center taking place on September 26, 2013. Among the topics covered will be legal and regulatory strategies to reduce toxic discharges and remove toxic pollutants from the environment.  Speakers, including Maia Bellon, Director of the Department of Ecology and Dan Opalski, Director of the Office of Water and Watersheds at the US EPA, Region 10, will address the complex science and public policy issues surrounding toxic chemicals, as well as state and federal toxic reduction efforts under CERCLA, MTCA and the Clean Water Act. 

James will discuss the development of water quality standards and fish consumption rates and the impact these standards will have on regulated entities. Other speakers will present related updates on Washington's rulemaking and implementation, and explore the latest developments in Washington, Oregon, California and Idaho. 

  • For a detailed agenda, click here.
  • To register online, click here.

INLAND EMPIRE PAPER COMPANY DEVELOPING NEW CUTTING EDGE WASTEWATER TREATMENT PROCESS
September 17, 2013

As reported in the latest issue of Washington Business, Tupper Mack Wells’ client Inland Empire Paper Company is developing a new wastewater treatment process using a method so cutting edge, it's still inventing the technology.  The article highlights improvements the company has made in response to some of the strictest wastewater discharge levels in the United States, including how the Spokane newsprint manufacturer is experimenting with a technology that will reduce nutrients in its discharge, sequester carbon dioxide, and create pure oxygen and biofuel, bioplastic or other renewable materials as the only byproducts.

  • To read the full article, click here.
  • To learn more about Inland Empire Paper Company, click here.

TUPPER MACK WELLS ATTORNEYS NAMED TO BEST LAWYERS IN AMERICA 2014® LIST
August 20, 2013

We are proud to announce that all three principals of Tupper Mack Wells have been selected for listing in The Best Lawyers in America® 2014. Matt Wells has been included on the Best Lawyers list for Environmental Law since 2008. Sarah Mack and James Tupper have been selected by their peers for inclusion in the fields of Environmental Law and Natural Resources Law, and James Tupper was additionally included in the field of Environmental Litigation (The Best Lawyers in America® 2014, Copyright 2013 by Woodward/White, Inc., Aiken, SC). For more information, contact Matt Wells at wells@tmw-law.com.


RAIN GARDEN HANDBOOK FOR WESTERN WASHINGTON NOW AVAILABLE
July 29, 2013

The Department of Ecology recently published the Rain Garden Handbook for Western Washington as a guide to planning, designing, and installing rain gardens to control stormwater and prevent pollution from stormwater runoff.  The Handbook can be used by homeowners, landscapers, landscape architects, engineers and others to create rain gardens in Western Washington, whether or not required by stormwater regulations. The Handbook’s principal author is Curtis Hinman, Washington State University Extension faculty member. 

Rain gardens are one of the Best Management Practices (BMPs) that can be used to meet certain minimum requirements under the 2012 Stormwater Management Manual for Western Washington.  For more information on stormwater regulations, contact James Tupper (Tupper@tmw-law.com) or Brad Doll (Doll@tmw-law.com).

  • To view the Rain Garden Handbook for Western Washington, click here.

2013 WASHINGTON SUPER LAWYERS LIST FEATURES PRINCIPALS OF TUPPER MACK WELLS
July 8, 2013

The principals at Tupper Mack Wells PLLC -- James Tupper, Sarah Mack and Matt Wells -- are honored once again to be selected for the annual Washington Super Lawyers list in 2013.

The Washington Super Lawyers list includes outstanding lawyers from more than 70 practice areas who have attained a high degree of professional achievement and peer recognition. The multi-phase selection process includes independent research, peer nominations and peer evaluations.  For a detailed description of the patented Super Lawyers selection process, see www.superlawyers.com/selectionprocess.

  • To learn more about James Tupper by visiting our website, click here.
  • To learn more about Sarah Mack by visiting our website, click here.
  • To learn more about Matt Wells by visiting our website, click here.

MATT WELLS TO SPEAK AT WATER RIGHTS TRANSFERS SEMINAR 
July 9, 2013

The 6th Annual Water Rights Transfers seminar sponsored by The Seminar Group will take place on October 9-10th, 2013 at City University in downtown Seattle.  This seminar is designed to provide practical information for water right holders, including a comprehensive introduction and exploration of key concepts and methods for managing water rights.  TMW’s Matt Wells is a featured speaker on the topic of water transfers.

Program Co-Chairs Maia D. Bellon, Director of the Washington State Department of Ecology and Mark T. Peterson, co-founder of Peterson & Marquis Law Office, will lead this seminar, which will also be broadcast on the web.

  • To view the full agenda, which includes registration information and pricing, click here.
  • To register for this event, click here.

FEDERAL DISTRICT COURT HOLDS THAT WIND BLOWN COAL DUST INTO WATERWAY DOES NOT VIOLATE CLEAN WATER ACT
May 29, 2013

In recent weeks, several environmental groups have indicated their intention to sue a national rail carrier, mining companies, and utilities for alleged Clean Water Act violations.  The groups’ notice of intent to sue indicates they intend to allege unpermitted deposition of coal dust and coal chunks into federally-protected waterways in the State of Washington.

In a recent decision with potential significance for that litigation, the United States District Court for Alaska granted summary judgment for a coal loading facility and railroad on two of three claims made by plaintiff environmental groups.  For more information, contact Brad Doll at doll@tmw-law.com.

  • To read Brad Doll’s analysis, click here.
  • To read the Alaska Community Action on Toxics, et al. v. Aurora Energy Services, LLC Order, click here.

STATE SUPREME COURT HEARS ARGUMENT IN CORNELIUS V. ECOLOGY
May 28, 2013

On May 23, 2013, the Washington Supreme Court heard oral argument in Cornelius v. Ecology, et al., a case involving changes in well locations for water rights held by Washington State University to enable consolidation of groundwater wells serving the WSU Pullman campus.  Mr. Cornelius’ numerous challenges to WSU’s water right changes were previously rejected by the Pollution Control Hearings Board and the Whitman County Superior Court. 

Tupper Mack Wells attorney Sarah Mack argued on behalf of Washington State University.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the Supreme Court argument on TVW, click here.

U.S. SUPREME COURT:  INDUSTRIAL STORMWATER PERMIT NOT REQUIRED FOR DISCHARGES FROM LOGGING ROADS
April 3, 2013 

In Decker v. Northwest Environmental Defense Center and a companion case, Georgia-Pacific West v. Northwest Environmental Defense Center, the U.S. Supreme Court affirmed the Environmental Protection Agency’s determination that stormwater runoff from forest roads is not a “point source” of water pollution requiring a permit under the Clean Water Act. EPA policy and regulation has emphasized state-supervised best management practices (BMPs) as the preferred method of controlling stormwater runoff from logging roads. The Northwestern Environmental Defense Center had argued that timber companies and the Oregon State Forester violated the Clean Water Act because industrial stormwater permits had not been obtained for two logging roads in Oregon’s Tillamook State Forest. The case involved EPA’s Silvicultural Rule and Industrial Stormwater Rule, which EPA has long interpreted to exclude logging roads from the NPDES permitting requirement. The U.S. Court of Appeals for the Ninth Circuit had ruled in 2011 that logging road runoff was not exempt, despite EPA's interpretation.

The Supreme Court concluded that EPA’s determination is a reasonable interpretation of its own regulations, and accordingly deferred to EPA’s interpretation under Auer v. Robbins, 519 U.S. 452 (1997). In an opinion by Justice Kennedy, the Court explained: "It is well established that an agency's interpretation need not be the only possible reading of a regulation—or even the best one—to prevail." Justice Scalia dissented, saying it is time to reconsider Auer v. Robbins – a decision he wrote – because “for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of ‘defer[ring] to an agency’s interpretation of its own regulations.’”  Significantly, Chief Justice Roberts wrote a concurrence acknowledging the debate over agency deference – an issue “going to the heart of administrative law” – and suggesting reconsideration of Auer v. Robbins in an appropriate case. For more information, contact James Tupper at tupper@tmw-law.com.

  • To read the decision in its entirety, click here.

WASHINGTON SUPREME COURT BRINGS YAKIMA RIVER BASIN ADJUDICATION “ONE STEP CLOSER TO FINALITY”
April 2, 2013

In this month’s Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack writes about the Washington Supreme Court’s latest decision in the long-running adjudication of surface water rights in the Yakima River Basin, Dep’t of Ecology v. Acquavella, et al.  The Court’s opinion, issued March 7th, addresses the Ahtanum Creek Subbasin, the final subbasin to be considered in the adjudication.

Key elements of the Court’s opinion involve the quantification of irrigable land on the Yakama Indian Reservation, the Yakama Indian Nation’s right to store water, and application of the “determined future development” exemption from relinquishment. Because the Court remanded for further proceedings, the Yakima River adjudication – originally begun in 1977 – may continue for several more years. For more information, contact Sarah Mack at mack@tmw-law.com or Matt Wells at wells@tmw-law.com.

  • To see the full article, click here.
  • To see the Supreme Court decision, click here.

BRAD DOLL TO SPEAK ON CLEAN WATER ACT ENFORCEMENT AT STORMWATER CONFERENCE
February 27, 2013

Registration is still open for next week’s National Environmental Business Council (NEBC) conference on Managing Stormwater in the Northwest, at which Tupper Mack Wells attorney Brad Doll will be speaking.  Brad’s presentation will address the risks and consequences of Clean Water Act enforcement actions, and considerations for optimizing the value of settlement agreements.  The conference will take place March 7th at the Greater Tacoma Convention & Trade Center in Tacoma, Washington.  For more information, contact Brad Doll at doll@tmw-law.com.

  • For details about the conference and registration information, click here.

SETTLEMENT REACHED IN LAWSUIT OVER EPA’S CONSTRUCTION STORMWATER RULE
February 26, 2013

The EPA has reached a settlement in a long-standing lawsuit over the 2009 “Effluent Limitations Guidelines” for the “Construction Development Industry” rule, in which the agency will undertake a new rulemaking to modify effluent limits, in particular, the turbidity limit.  Many of the mandatory “non-numeric” Best Management Practices (BMP) requirements will also be affected.  As a result of the settlement, the EPA will withdraw the turbidity numeric effluent limit and propose a new rule by April 15, 2013.

The suit, Wisconsin Builders Association v. EPA, was brought in the U.S. Court of Appeals for the 7th Circuit and primarily challenged the strict numeric discharge limit (280 NTU) and certain segments of the non-numeric BMP provisions (e.g., language specific to controlling “volume, velocity and/or flow” of stormwater discharges and strict soil stabilization requirements). 

  • To review the settlement document, click here.
  • To view the settlement description on the EPA website, click here.

ECOLOGY ACKNOWLEDGES CURRENT WATER QUALITY CRITERIA APPLIED IN WASHINGTON ARE PROTECTIVE OF HUMAN HEALTH
February 11, 2013

In its third Water Quality Forum on water quality human health criteria held on February 8, 2013, the Department of Ecology explained the state of Washington’s current risk level policy to protect human health from exposure to carcinogens in surface water and fish tissue. The state policy is the same as EPA’s national guidance which was developed to ensure as close as possible to zero increased risk of cancer in the criteria. Ecology reviewed the basis for the current criteria and explained that the criteria are protective of human health from exposure to carcinogens in our waters and at fish consumption rates up to 650 grams per day.

This is an important announcement in light of Ecology’s recently published Fish Consumption Rate Technical Support Document describing fish consumption rates for high fish consumers in the state of between 175 and 250 grams per day. This means that as the state continues to review the human health criteria it starts from the position that current standards are protective of public health and defensible under federal and state law. There is much work ahead in evaluating the factors that go into deriving the criteria for carcinogens including whether the risk policy should be revised. Ecology also intends to conduct a significant review of the criteria for non-carcinogen toxics. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view Ecology’s presentation on risk levels, click here.
  • To view Ecology’s website for the human health criteria review, click here.

US EPA PUBLISHES FREQUENTLY ASKED QUESTIONS GUIDANCE FOR HUMAN HEALTH WATER QUALITY CRITERIA
February 5, 2013

EPA’s Ambient Water Quality Criteria National Guidelines outline the methodology used by states and tribes to develop human health water quality criteria. On January 18, 2013 EPA published a FAQ document affirming the acceptable risk level used to derive human health criteria for carcinogens.  The document reaffirms that the National Toxics Rule, as appliedin the state of Washington, is protective for high fish consumers at 650 grams/day.

According to the EPA, the revised methodology are intended to provide more flexibility for decision-making at the state, tribal and EPA regional levels.  The EPA believes it is most likely that the methodology will result in more stringent criteria for bioaccumulatives and generally similar values of nonbioaccumulatives. The guidelines present the EPA’s recommended methodology for developing human health ambient water quality criteria as required under the Clean Water Act.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the Human Health Ambient Water Quality Criteria and Fish Consumption Rates Frequently Asked Questions PDF, click here.
  • To view more about the Water Quality Criteria National Guidelines on the EPA’s website, click here.

UPCOMING DEPARTMENT OF ECOLOGY POLICY FORUM TO DISCUSS NEW REPORT REGARDING FISH CONSUMPTION RATES
February 4, 2013

The Department of Ecology continues to evaluate science and policy for potential new human health water quality standards for toxics. A new Ecology report about how much fish Washington residents eat informs this discussion, and this report, along with other information on toxic chemical levels in freshwater areas of Washington, will be covered at a policy forum on Friday, February 8, 2013.

Last week, the DOE published "An Assessment of the Chlorinated Pesticide Background in Washington State Freshwater Fish and Implications for 303(d) Listings." Ecology collected fish tissue samples from lakes across Washington State in 2010 and 2011 and analyzed the samples for 29 chlorinated pesticides. This data was then used to prioritize 303(d)-listed waterbodies and to support revisions to the water quality standards for chlorinated pesticides.    

The report evaluates background (i.e., areas with no significant source of contaminants other than atmospheric deposition) concentrations of chlorinated pesticides in freshwater areas of Washington. It also considers how different fish consumption rate choices made in human health-based criteria calculations would affect 303(d) listings using Fish Tissue Equivalent Concentrations (FTEC). For example, chlorinated pesticide criteria were re-calculated for a variety of fish consumption rates, ranging from 6.5 grams per day to 250 grams per day. For more information, contact James Tupper at tupper@tmw-law.com.

  • To see the full Department of Ecology report, click here.
  • For more details on the upcoming meeting, click here.

JAMES TUPPER AND BRADFORD DOLL AUTHOR ARTICLE ON RISK POLICY FOR WATER QUALITY HUMAN HEALTH CRITERIA
January 16, 2013

The Washington Department of Ecology is considering the development of state water quality human health criteria. An important factor in deriving human health criteria for carcinogens is the acceptable risk level used to calculate the criteria. EPA guidance continues to support deriving human health criteria based on protection of the general population to a specified risk level as long as all individuals are provided a base minimum level of protection. EPA guidance further recommends that states revise their human health criteria, or in the case of Washington, develop human health criteria, where there is evidence that all individuals are not being protected. Tupper Mack Wells attorneys James Tupper and Brad Doll have authored an article reviewing the proposed policy change and history of the risk policy for water quality human health criteria. For more information, contact James Tupper at tupper@tmw-law.com or Brad Doll at doll@tmw-law.com.

  • Note: This story was updated on October 8, 2013. To view the updated story and article, click here.

U.S. SUPREME COURT HOLDS L.A. STORMWATER FLOWS DID NOT VIOLATE CLEAN WATER ACT
January 15, 2013

In a 9-0 ruling on January 8, 2013 (Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., No. 11-460), the U.S. Supreme Court reversed a Ninth Circuit Court of Appeals decision that had held the Los Angeles County Flood Control District liable for violation of the District’s Clean Water Act NPDES stormwater permit.  In a case in which all parties, including the United States as amicus curiae, agreed on the answer to the narrow question on which the Supreme Court granted certiorari, the Court held that the District had not violated the Clean Water Act because the flow of water from a concrete-lined portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant.” 

The Natural Resources Defense Council and Santa Monica Baykeeper had filed a Clean Water Act citizen suit against the District, alleging that water quality measurements from monitoring stations in the Los Angeles and San Gabriel Rivers demonstrated that the District was violating water quality standards.  The Ninth Circuit ruled in favor of the environmental groups, holding that a “discharge of pollutants” occurred when stormwater containing water quality standards-exceeding pollutants flowed out of concrete-lined flood control channels and into downstream unlined portions of the rivers.  But in front of the Supreme Court all parties agreed that the Ninth Circuit’s analysis was erroneous, because the Supreme Court had previously ruled in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 124 S.Ct. 1537 (2004), that the transfer of polluted water between “two parts of the same water body” is not a discharge of pollutants.  An article by Tupper Mack Wells attorney Lynne Cohee describes the Supreme Court’s latest opinion and its context in more detail.  For more information, contact Lynne Cohee at cohee@tmw-law.com.

  • To view Lynne Cohee’s article, click here.
  • To view the Supreme Court decision, click here.

WASHINGTON BLUE RIBBON PANEL ISSUES REPORT ON OCEAN ACIDIFICATION
January 14, 2013

In the January 2013 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack takes a look at Washington’s efforts to tackle the problem of ocean acidification.  The Governor’s Blue Ribbon Panel on Ocean Acidification, co-chaired by William Ruckelshaus and Jay Manning, released its report on November 27, 2012, entitled Ocean Acidification: From Knowledge to Action--Washington State’s Strategic Response

Ocean acidification, which occurs when the pH of seawater is reduced for an extended period of time, could have serious consequences for Washington’s marine environment and its commercial shellfish industry.  This ongoing shift in ocean chemistry is caused primarily by the ocean’s uptake of carbon dioxide from the atmosphere.  The report predicts that, at the current rate of global carbon dioxide emissions, by the end of this century the average acidity of the ocean surface will increase by 100 to 150 percent over pre-industrial levels.  In general, the report acknowledges that ocean acidification is a global issue, and that more science and data collection are needed in order to determine the impacts and contribution from specific activities occurring in Washington.  Nevertheless, former Governor Christine Gregoire called for Washington to act now to combat ocean acidification and to “lead the world” in solving this problem.  The Blue Ribbon Panel’s report includes 42 action recommendations, including as-yet-undefined local land use controls and strategies for adaptation and remediation of local seawater conditions. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view Sarah Mack’s article in the Western Water Law & Policy Reporter, click here.
  • To view the Governor’s Blue Ribbon Panel report on Ocean Acidification, click here.

EPA APPROVES WASHINGTON’S UPDATED WATER QUALITY ASSESSMENT SUBMITTAL AND 303(d) LIST
January 10, 2013

The U.S. Environmental Protection Agency (EPA) Region 10 in Seattle has reviewed Washington’s latest Water Quality Assessment submittal and has approved the Section 303(d) List (Category 5 waters).  Washington is required to assess its waters periodically to meet requirements of sections 303(d) and 305(b) of the Clean Water Act, and is required to submit the results to EPA as an “integrated report.” 

This Assessment is based mainly on new, readily available, water quality data for marine waters. Data for fresh waters is now being assessed for the next listing cycle, which is expected to be available for the public to review in the fall of 2013.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the 2012 EPA-approved Water Quality Assessment on Ecology’s website, click here

PCHB RULES PUDDLES ARE NOT “WATERS OF THE STATE” UNDER WATER POLLUTION CONTROL ACT
January 8, 2013 

TMW’s Sarah Mack examines BNSF Railway Company v. Washington State Department of Ecology, PCHB No. 11-181 (Order on Motion for Summary Judgment), in the December 2012 issue of Western Water Law & Policy Reporter. This appeal involved a penalty order issued by the Department of Ecology against BNSF Railway Company based on a chemical spill after a freight train derailment in 2011. 

In a case testing the limits of the extremely broad coverage of Washington’s water pollution control statutes, the Pollution Control Hearings Board ruled that “waters of the state” do not include puddles, which the Board defined as shallow depressions full of water, especially muddy or dirty water.  The PCHB’s summary judgment ruling makes clear that even a very large puddle, “unconnected to any other water body, with no outlet to any other water body, and wholly transitory in nature,” is not a “water of the state” for purposes of liability for pollution discharges. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the Western Water Law & Policy Reporter article by Sarah Mack, click here.
  • To view the PCHB decision, click here.

BRAD DOLL TO SPEAK AT 2013 NORTHWEST ENVIRONMENTAL BUSINESS COUNCIL
January 7, 2013

On March 7, 2013, Tupper Mack Wells attorney Brad Doll will speak at the 2013 Northwest Environmental Business Council (NEBC) conference on Managing Stormwater in the Northwest.  Brad’s presentation will address the risks and consequences of Clean Water Act enforcement actions, and considerations for optimizing the value of settlement agreements. For more information, contact Brad Doll at doll@tmw-law.com.

  • To register for the conference, click here.
  • To learn more about the conference Northwest Environmental Business Council, click here.

2012

COURT OF APPEALS DECISION MAY ALTER DEFERENCE TO ECOLOGY’S TECHNICAL EXPERTISE
December 12, 2012

Tupper Mack Wells attorney Sarah Mack published an article in the October 2012 issue of the Western Water Law & Policy Reporter on a recent Court of Appeals decision that may herald greatly reduced deference to the technical expertise of the Department of Ecology.  The Court of Appeals affirmed a PCHB decision rejecting Ecology’s modifications to a municipal stormwater general permit for Clark County.  Ecology had determined that Clark County’s alternative stormwater control program would provide “equal or similar” protection to that specified in Ecology’s municipal permit.  The PCHB, which hears appeals from Ecology decisions, concluded that the agency’s determination was not entitled to any deference. 

In Rosemere Neighborhood Ass’n v. Ecology, while recognizing “that deference is due Ecology because of its technical and scientific expertise,” Division II of the Court of Appeals nevertheless affirmed – based on “expert testimony” and concerns expressed by other agencies – the PCHB’s disagreement with Ecology’s determination.  Erosion of deference to Ecology’s technical expertise may have far-reaching implications in litigation over water quality and water rights in Washington.  Clark County has filed a petition for review with the Washington Supreme Court.

  • To read the WWLPR article in its entirety, click here.
  • To view the Court of Appeals decision, click here.

JAMES TUPPER TO SPEAK ON IMPACTS OF MUNICIPAL STORMWATER PERMIT AT GROWTH MANAGEMENT AND LAND USE CONFERENCE
October 29, 2012

Tupper Mack Wells attorney James Tupper will give a presentation on the updated Municipal Stormwater Permit at the 21st Annual Growth Management and Land Use conference, November 8 & 9, 2012, at the Washington State Convention Center in Seattle.  This conference emphasizes recent developments in the regulation of land, water and environmental resources, providing an in-depth look at major challenges in land use and environmental regulation in Washington.

James Tupper will explain how various provisions of the Municipal Stormwater Permit – including permit status and deferral of deadlines, challenges for existing developed sites, and changes coming over the horizon – will have a dramatic impact on land use regulation in communities throughout Washington.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To register for the conference, click here
  • To download the conference brochure, click here.

TUPPER MACK WELLS SUPPORTS EARTHRISE LAW CENTER’S CONDOR PROJECT
September 27, 2012

Tupper Mack Wells PLLC is proud to support the Condor Project by Earthrise Law Center at Lewis & Clark Law School.  The Condor Project furnishes non-lead ammunition to hunters and educates the public about the threat that fragments of lead ammunition pose to scavenger animals like the California condor and the golden eagle.  Lead poisoning has been documented in many avian predators and scavengers, which ingest spent lead ammunition when feeding on the remains of mammals shot with lead bullets.

The 2012 video The Non-Lead Hunter, featuring Anthony Prieto, a lifelong hunter with a love of the outdoors and the heart of a conservationist, explains how a small change – switching from lead to copper ammunition – can have big effects in preserving wildlife. 

  • To view The Non-Lead Hunter, click here.
  • For more information about Earthrise Law Center, click here.

NEW ARTICLE ON CHANGES IN “MANNER OF USE” UNDER WASHINGTON’S GROUNDWATER CODE
September 17, 2012

In a detailed article, Tupper Mack Wells attorney Sarah Mack explains the arguments in favor of changing the “manner of use” of a groundwater right for community domestic supply to increase the number of residential service connections using the same amount of water.  Using as its starting point the notion – originating with dicta in a 1999 Washington Supreme Court decision – that the groundwater code does not authorize changes in the “purpose of use” of a groundwater permit or certificate, the article explores the meaning of “manner of use” changes authorized by RCW 90.44.100. 

Sarah presented a condensed version of this article at Law Seminars International’s 2012 Water Law in Washington conference on August 27-28.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read the article, click here
  • To obtain conference materials from Law Seminars International, click here

MAYOR’S OFFICE RECOMMENDS SEATTLE SHORELINE MASTER PROGRAM UPDATE
September 11, 2012

On September 4, 2012, Seattle Mayor Mike McGinn submitted recommendations to the City Council to update the City’s Shoreline Master Program (SMP).  The update package includes a report by the Department of Planning and Development, proposed amendments to the City’s Comprehensive Plan, maps depicting proposed changes to the boundaries of some shoreline environments, and a Shoreline Restoration and Enhancement Plan. 

The City Council’s Planning, Land Use and Sustainability (PLUS) Committee will hold a public hearing on October 15, 2012 at 5:30 p.m. in the City Council Chambers at City Hall. After the City Council approves the amendments to Seattle’s SMP, the amended SMP will be submitted to the State Department of Ecology for approval. For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the Mayor’s recommendations to update Seattle’s SMP, click here
  • To view the City Council committee meeting schedule, click here

SEMINAR ON WATER RIGHT TRANSFERS TO FEATURE TMW’S MATT WELLS
August 28, 2012

Explore a wide range of issues affecting Washington's primary means of meeting future demand -- water rights changes and transfers -- on September 27, 2012 at the Washington State Convention Center in Seattle. Program chairs Maia Bellon, Water Resources Program Manager at the Washington Department of Ecology, and Matt Wells, a member of Tupper Mack Wells, will lead this timely seminar.  For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the agenda for the seminar, click here.
  • To register for the seminar, click here.

TUPPER MACK WELLS PARTICIPATES IN LANDAU ASSOCIATES’ CHARITY GOLF TOURNAMENT
July 30, 2012

Tupper Mack Wells was proud to sponsor a hole at Landau Associates’ Charity Golf Tournament last Friday, July 27th, at the Harbour Pointe Golf Club in Mulkiteo.  Proceeds from the event benefited the hunger relief non-profit food bank distributor Northwest Harvest.  For more information, contact James Tupper at tupper@tmw-law.com.

  •  To learn more about Northwest Harvest, click here.

ECOLOGY’S RAINWATER COLLECTION POLICY LETS 12,000 RAIN GARDENS BLOOM
July 17, 2012

The Washington State University Extension and the nonprofit Stewardship Partners have launched an ambitious program to establish 12,000 rain gardens throughout the Puget Sound region by 2016.  A rain garden is an area dug into a slight depression, filled with well-draining soil and plants, that captures channeled stormwater and infiltrates it on-site.  Rain gardens collect and absorb rainwater that would otherwise run off rooftops, driveways, and parking areas.  The “12,000 Rain Gardens” campaign highlights eye-catching, low maintenance landscaping that prevents pollution, increases property values, and reduces the overall cost of stormwater management.  Over 700 rain gardens have already been installed in the Puget Sound area.

In an article published in the July 2012 issue of the Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explains how the “12,000 Rain Gardens” project was enabled by the Department of Ecology’s 2009 policy allowing on-site use of collected rainwater without a water right.  Without this acknowledgment by Ecology, collection and use of rainwater for landscape irrigation would be considered a beneficial use of water requiring a water right permit -- spelling delay if not doom for the “12,000 Rain Gardens” campaign.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the article, click here.
  • To find WSU Extension resources for developing a rain garden, click here.
  • To view more information on the rain garden campaign, click here.
  • To view Ecology’s rainwater collection policy, click here.

SETTLEMENT REACHED AND PCHB DECISIONS VACATED IN PAINTED SUMMER HILLS CASE
July 16, 2012

In a closely-watched appeal involving a change to allow additional homes to be supplied with water under a community domestic water right permit, the water right holder and the Department of Ecology reached a settlement in which they jointly requested vacation of the Pollution Control Hearings Board’s decisions.  The PCHB had ruled on summary judgment that allowing domestic water supply to 19 homes instead of 12 homes was a permissible change in the manner of use of the groundwater permit.  After Ecology appealed the PCHB’s decision to the Court of Appeals, the parties reached a settlement under which Ecology issued a superseding permit and the parties stipulated to vacation of the PCHB’s decisions.  On June 19, 2012, the PCHB issued an order vacating its decisions in accordance with the parties’ settlement agreement.  Tupper Mack Wells represented the water right holder, Painted Summer Hills, LLC. 

Several of the issues and arguments in the Painted Summer Hills case will likely arise in the future and continue to be hotly debated.  Tupper Mack Wells attorney Sarah Mack will discuss this case at the “Water Rights Transfers in 2012” seminar co-chaired by Matt Wells and Maia Bellon on September 27, 2012.  For more information on the Painted Summer Hills case, contact Sarah Mack at mack@tmw-law.com.  For more information on the seminar, contact Matt Wells at wells@tmw-law.com.

  • To view the PCHB’s summary judgment order in the Painted Summer Hills case, click here.
  • To view the PCHB’s order vacating its decisions in the Painted Summer Hills case, click here.
  • To view the agenda for the Water Rights Transfers seminar, click here.
  • To register for the Water Rights Transfers seminar, click here.

SARAH MACK TO CO-CHAIR 21ST ANNUAL WASHINGTON WATER LAW CONFERENCE
July 11, 2012

On August 27-28, 2012, Tupper Mack Wells attorney Sarah Mack and Van Ness Feldman GordonDerr attorney Adam Gravley will co-chair the 21st annual Washington Water Law conference sponsored by Law Seminars International.  The conference features a faculty with diverse perspectives and insights on water availability considerations in land use planning, relinquishment in water right changes and transfers, new scientific tools for water resource management, the intersection of tribal and state authority, and other timely issues. 

Beginning with an opening address on current water resource policy priorities by Maia Bellon, Director of the Department of Ecology’s Water Resources Program, the conference will cover legislative and litigation developments during the past year.  This year’s conference will also include an optional “Water Law 101” session on the fundamentals of water law.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view conference agenda and to register online, click here.

MATT WELLS TO SPEAK AT SEMINAR ON WATER RIGHT TRANSFERS
July 10, 2012

Water is an essential economic and environmental resource for Washington State. Our water supplies are under ever-increasing pressure to meet the out-of-stream needs of agriculture and growing communities, while simultaneously meeting the in-stream needs of fish and other aquatic resources.  Managing our water resources efficiently to meet current and future demands involves changing and transferring existing water rights to align with new needs.

Explore a wide range of issues affecting Washington's primary means of meeting future demand -- water rights changes and transfers -- on September 27, 2012, at the Washington State Convention Center in Seattle. Program chairs Maia Bellon, Water Resources Program Manager at the Washington Department of Ecology and Matt Wells, a member of Tupper Mack Wells, will lead this timely seminar.  Receive a 100 dollar discount by registering by July 20th using the code EB101.  For more information, contact Matt Wells at wells@tmw-law.com.
  • To view the agenda for the seminar, click here.
  • To register for the seminar, click here.

TUPPER MACK WELLS PRINCIPALS NAMED TO 2012 WASHINGTON SUPER LAWYERS LIST
July 9, 2012

James Tupper, Sarah Mack and Matt Wells, the principals in Tupper Mack Wells PLLC, are honored to be selected for the Washington Super Lawyers list for 2012.  The annual Washington Super Lawyers list includes outstanding lawyers from more than 70 practice areas who have attained a high degree of professional achievement and peer recognition. The multi-phase selection process includes independent research, peer nominations and peer evaluations. 

James Tupper is listed in the Environmental Litigation practice area; Sarah Mack and Matt Wells are listed in the Environmental Law practice area.  In addition to this honor, Sarah Mack is ranked among the top 50 women on the Washington Super Lawyers 2012 list.

  • To learn more about James Tupper by visiting our website, click here.
  • To learn more about Sarah Mack by visiting our website, click here.
  • To learn more about Matt Wells by visiting our website, click here.

TUPPER MACK WELLS ATTORNEY BRAD DOLL NAMED TO RISING STARS LIST FOR THIRD CONSECUTIVE YEAR
July 9, 2012

Tupper Mack Wells associate Brad Doll has been named to the 2012 Rising Stars list as one of the top up-and-coming attorneys in the state.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor.  The Rising Stars list is selected by the research team at Super Lawyers, a service of the Thomson Reuters, Legal division.  Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check.

Brad Doll practices land use, environmental, and real estate law, with particular focus on project permitting, litigation, and cleanup of contaminated properties. Brad’s litigation experience includes administrative and judicial appeals before the Washington Court of Appeals, the Pollution Control and Growth Management Hearings Boards, and a clerkship with the Washington State Supreme Court. Brad also has experience assisting clients in obtaining water quality and solid and hazardous waste permits, as well as lawsuits and penalty actions related to those permits. Brad drafts real estate contracts, including purchase and sale agreements and easement agreements. Prior to attending law school, Brad gained extensive business experience as an operations manager and business analyst at Amazon.com.

  • For more information about Brad Doll, visit our website by clicking here.

ARMY CORPS OF ENGINEERS ANNOUNCES FINAL 2012 REGIONAL CONDITIONS FOR NATIONWIDE WETLAND PERMITS
July 3, 2012

On June 22, 2012, the Seattle District of the U.S. Army Corps of Engineers released a Special Public Notice announcing final regional conditions for nationwide permits under Section 404 of the Clean Water Act.  Section 404 permits cover wetland filling and dredging activities; in general such activities must either be covered under a nationwide permit (“NWP”) or authorized in an individual project permit.  The Corps has also published a User’s Guide for Nationwide Permits in Washington State.  The User’s Guide includes requirements that apply nationwide as well as special conditions that apply to projects located within Washington.  The Corps and the Washington Department of Ecology will be presenting the 2012 NWP program around the state starting in mid-July. 

Since many projects are under the purview of nationwide permits, these new permits and new regional conditions are significant.  For more information on the 2012 NWP program, contact Matt Wells at wells@tmw-law.com

  • To view the Special Public Notice and the User’s Guide For Nationwide Permits in Washington State on Ecology’s Federal Permits web page, click here.

 


SEATTLE PUBLISHES SEPA DETERMINATION ON SHORELINE MASTER PROGRAM UPDATE
July 3, 2012

The SEPA determination of nonsignificance on the City of Seattle’s Department of Planning and Development’s final recommendations for the Shoreline Master Program were published June 28th. The comment and appeal period runs through July 20, 2012.

Additionally, DPD has updated Seattle’s Shoreline Master Program website to include the final recommendations, the shoreline goals and policies in Seattle’s Comprehensive Plan, the Director’s Report and the updated shoreline maps.  For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the final recommendations, click here.
  • To view DPD’s Land Use Information Bulletin with the SEPA notice for this project, click here.

JAMES TUPPER TO SPEAK AT JUNE 26, 2012 CONFERENCE ON TOXICS IN FISH, SEDIMENT & WATER
June 11, 2012

The Environmental Law Education Center’s Advanced Conference on Reducing Toxics in Fish, Sediment & Water will take place on June 26, 2012 at the Washington State Convention & Trade Center.  Tupper Mack Wells attorney James Tupper will give a presentation on CERCLA, MTCA & the Clean Water Act, specifically addressing Ecology’s new initiatives to establish Fish Consumption Rates and modify Washington’s Sediment Management Standards and Surface Water Quality Standards.

These upcoming water quality-related rulemakings and proposed revisions have far-reaching implications for cleaning up contaminated sediment, permit compliance, source control, and many other activities.  The proposed revisions will also have significant human health and ecological impacts.  The conference will feature diverse perspectives and speakers who will explore the possible consequences – intended and unintended – of the rulemakings, revisions and other regulatory activities.  For more information, contact James Tupper at tupper@tmw-law.com.

  • For conference registration and information, click here.

TUPPER MACK WELLS SPONSORS THE PIKE MARKET CHILD CARE AND PRESCHOOL ANNUAL WALK FOR KIDS
June 5, 2012

Join Tupper Mack Wells in supporting the Pike Market Child Caree and Preschool this weekend. The Preschool offers high-quality education and child care on a sliding-scale fee basis in order to fulfill its mission of making exceptional early childhood education available to all families, without regard to financial resources. 

Tupper Mack Wells is sponsoring the Preschool’s annual Walk For Kids, which will be held Sunday, June 10, 2012.  We wholeheartedly support TMW attorney Matt Wells who has been working with the Preschool for over nine years and will be there volunteering his time and participating in the walk this Sunday.

Pike Market Child Care & Preschool is a 501(c)3 organization.  All proceeds from the walk will directly support tuition assistance for more than 70 percent of the children enrolled in the program. For more information, contact Matt at wells@tmw-law.com.

  • For Pike Market Child Care Annual Walk For Kids registration and other information, click here.

AWB ANNOUNCES WINNERS OF 2012 ENVIRONMENTAL EXCELLENCE AWARDS SPONSORED BY TUPPER MACK WELLS
May 29, 2012

The Association of Washington Business (AWB) has announced its 2012 Environmental Excellence Awards winners, spotlighting industry leaders in environmental innovation, cutting-edge technology and conservation. As a sponsor of the awards, Tupper Mack Wells is proud to share that one of our clients, Northwest Marine Trade Association (NMTA), was recognized for Leading Environmental Practices.

NMTA was lauded for spearheading the efforts of its member boatyards to work with the Puget Soundkeeper Alliance on the development of a new Department of Ecology General Boatyard Permit, creating a national model for such collaboration.  One aspect of this collaborative work was NMTA’s support of legislation to phase out copper paint for boats by 2020.  AWB also cited the Association for helping to start the Clean Boating Foundation, "the first of its kind in the country, to help implement the move toward alternative paints." For more information about this story, please contact James Tupper at tupper@tmw-law.com.

  • To view the 2012 winners of the Environmental Excellence Awards, click here.

ECOLOGY PROPOSES NEW MANAGEMENT RULE FOR DUNGENESS WATERSHED
May 21, 2012

The Washington Department of Ecology is proposing a new set of water management regulations, including stream closures and minimum instream flows, for the Dungeness River watershed on Washington’s Olympic Peninsula.  The Elwha-Dungeness area is currently one of the only designated “water critical” basins in western Washington without an instream flow rule.  Ecology’s proposed rule, based on a watershed plan approved by the Clallam County Board of Commissioners in 2005, will apply to all new appropriations of surface water and groundwater in the Dungeness watershed.  Some water uses would be exempt, including new domestic water service -- within a five-year window -- to parcels from an existing permit-exempt group domestic well.  New groundwater appropriations may be authorized with mitigation or by debiting a “reserve” of approximately 548,000 gallons per day for indoor domestic use.

Ecology will hold an open house and public hearing on the proposed regulation June 28, 2012 at the Guy Cole Center, 202 N. Blake Avenue in Sequim beginning at 5:00 p.m.  The proposal will be subject to public review and comment until July 9, 2012.  Tupper Mack Wells attorney Sarah Mack summarizes key elements of the proposed Dungeness watershed regulation in an article for the June issue of the Western Water Law & Policy Reporter.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read a copy of the WWL&PR article, click here.
  • For a copy of the proposed regulation, click here

ECOLOGY ISSUES MODIFIED INDUSTRIAL STORMWATER GENERAL PERMIT
May 16, 2012

The Washington State Department of Ecology has issued the final version of a modified Industrial Stormwater General Permit (ISGP), effective July 1, 2012.  Ecology modified the permit to address the April 25, 2011 order by the Washington State Pollution Control Hearings Board (PCHB), which required significant changes to the permit’s sampling and corrective action requirements.  In addition, Ecology revised the permit’s effluent limits for fecal coliform to comply with recently-enacted legislation.  New narrative effluent limits will apply to approximately eighty industrial facilities discharging to waterbodies designated as impaired due to fecal coliform bacteria.  The modified permit will expire January 1, 2015. 

Any appeal of the modified ISGP must be filed with the PCHB within 30 days, i.e., by June 15, 2012.   

Industrial facilities that are covered under the existing permit will automatically be covered under the new modified permit.  New or unpermitted facilities may obtain coverage under the modified permit by submitting a complete application to Ecology and complying with public notice requirements. 

For more information about the modified ISGP and its potential impacts, contact James Tupper at tupper@tmw-law.com.

  • To view the permit documents, click here.

 


NEW LEGISLATION STREAMLINES STORMWATER MANAGEMENT IN BOATYARD GENERAL PERMIT
April 9, 2012

Last week Governor Chris Gregoire signed two important bills related to stormwater management.  The first was HB 2651 (see analysis below), the second is HB 2469.  HB 2469 amends the state Shoreline Management Act (SMA) to streamline installation of stormwater treatment systems at existing boatyards.  The legislation exempts boatyards installing treatment best management practices under the Boatyard General Permit from the procedural permitting requirements of the SMA.

Boatyards will still have to comply with the substantive requirements of the Act and that will be reviewed as part of Ecology’s approval of stormwater treatment systems.  This will provide a significant reduction in the expense and time to install stormwater treatment systems under the permit.

For more information, or to determine how this legislation may impact your facility, contact James Tupper at tupper@tmw-law.com.

  • To view HB 2469, click here.

GOVERNOR GREGOIRE SIGNS IMPORTANT STORMWATER LEGISLATION AFFECTING FECAL COLIFORM LIMITS
April 9, 2012

Last week Governor Chris Gregoire signed two important bills related to stormwater management; the first is HB 2651, the second is HB 2469 (see analysis above).  HB 2651 amends RCW 90.48.555 and will require Ecology to modify the Industrial Stormwater General Permit to replace numeric effluent limits for fecal coliform with narrative limits based on best management practices.  Ecology has already proposed modifications to the general permit that will implement the legislation when it is effective in July.

In a controversial move in 2009, Ecology imposed numeric limits on over 90 industrial facilities that discharge to water bodies that were not meeting bacteria criteria in the state water quality standards.  Many facilities struggled with this issue because in many cases the source of this bacteria is wildlife, particularly birds.  Facilities subject to fecal coliform limits should track the proposed permit modifications to ensure compliance with the modified permit when it is issued this summer.

For more information, or to determine how this legislation will impact your facility, contact James Tupper at tupper@tmw-law.com.

  • To view HB 2651, click here.

WASHINGTON ENACTS RELINQUISHMENT EXCEPTION FOR WATER RIGHT CHANGE APPLICATIONS
March 27, 2012

On March 7, 2012, Governor Chris Gregoire signed legislation intended to protect water rights for which change applications are pending before the Department of Ecology.  House Bill 1381, which passed the Legislature with nearly unanimous support, amends Washington’s water right relinquishment statute to provide that “waiting for a final determination from the department of ecology on a change application” will constitute “sufficient cause” for nonuse of a water right.   

Tupper Mack Wells attorney Sarah Mack has written an article for the April 2012 issue of the Western Water Law & Policy Reporter explaining why water right holders should view this amendment with some caution until it is definitively interpreted by the courts.  If this new exception is narrowly construed, it may well turn out to be a trap for the unwary – instead of a safe harbor from relinquishment.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view this article, click here.
  • To view the legislation, click here.

JAMES TUPPER AUTHORS CHAPTER ON SHORELINE REGULATION IN REAL PROPERTY DESKBOOK
March 26, 2012

Tupper Mack Wells attorney James Tupper authored the chapter on shoreline regulation in the recently-released Volume 6 of the Washington State Bar Association’s Real Property Deskbook series (4th Edition, 2012).  Chapter 10, entitled “Shoreline Substantial Development,” addresses state and local government regulation of shoreline development under the state Shoreline Management Act and the federal Coastal Zone Management Act. 

Volume 6 of the Real Property Deskbook covers land use development, offering a practical, project-oriented look at how land use regulations are applied in given circumstances, focusing on project-specific implementation of laws in this constantly-changing regulatory environment.  Volume 6 of the Real Property Deskbook is available now from the WSBA.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the WSBA/CLE website regarding this volume, click here.

TMW ATTORNEY BRAD DOLL’S PRESENTATION ON CLEAN WATER ACT CITIZEN LAWSUITS AVAILABLE FOR DOWNLOAD
March 13, 2012

On March 8, 2012, TMW attorney Brad Doll co-presented at the 2012 Northwest Environmental Business Council (NEBC) conference on Managing Stormwater in the Northwest.  Brad’s presentation addressed the risks and consequences of Clean Water Act enforcement actions and considerations for optimizing settlement agreements of enforcement actions. For more information, contact Brad Doll at doll@tmw-law.com.

  • To view and download the presentation on the NEBC website, click here.

TMW ATTORNEY MATT WELLS NAMED ONE OF THE BEST ENVIRONMENTAL ATTORNEYS IN PUGET SOUND REGION
March 12, 2012

We are proud to announce that the January 2012 issue of Seattle Business magazine has named Tupper Mack Wells attorney Matt Wells as one of the leading environmental lawyers in the Puget Sound region for 2012, as determined by his peers. “I’m delighted to be included in such a great group of peers,” commented Matt after the list was published.

  • To view the list in Seattle Business magazine, click here.

JAMES TUPPER TO SPEAK WEDNESDAY AT TELEBRIEFING ON NEW DRAFT MODIFICATION TO WASHINGTON’S ISGP
March 5, 2012

James Tupper will be speaking at the one hour "New Draft Modification to Washington's Industrial Stormwater General Permit" TeleBriefing sponsored by Law Seminars International on Wednesday, March 7 at 10 a.m.  In this one-hour TeleBriefing, a panel of experts will discuss the topic and take questions from the audience.  For more information, including how to receive a special discounted rate, contact James Tupper at tupper@tmw-law.com.

  • To view the online brochure, click here.

TUPPER MACK WELLS SPONSORS AWB’S 2012 ENVIRONMENTAL EXCELLENCE AWARDS
February 29, 2012

Tupper Mack Wells is proud to sponsor the Association of Washington Business’s 2012 Environmental Excellence Awards, which spotlight industry leaders in environmental innovation, cutting-edge technology and conservation.  Recognizing the importance of private sector achievements in environmental protection, conservation and compliance, the awards showcase companies that act to create a better environment, manufacture products that increase environmental quality, conserve resources, and establish processes that improve the environment, including education and business operations.  A panel of AWB members will review applications based on a variety of factors, including unique and innovative environmental solutions and tangible economic and environmental benefits.  This year’s winners will be selected in the spring. For more information, please contact Matt Wells at wells@tmw-law.com.

  • To view the 2011 winners of the Environmental Excellence Awards, click here.

JAMES TUPPER TO SPEAK AT 2012 CLEAN WATER AND STORMWATER CONFERENCE
February 15, 2012

Law Seminars International has announced its twelfth annual comprehensive seminar on Clean Water and Stormwater, to be held in Seattle on April 4 and 5, 2012.  Tupper Mack Wells attorney James Tupper will speak on the topic of permit compliance under the Industrial Stormwater General Permit (ISGP), including the practical implications of recent PCHB rulings on the presumption of compliance with water quality standards for industrial facilities implementing Best Management Practices approved by the Department of Ecology.  For more information, contact James Tupper at  tupper@tmw-law.com.

  • For registration information and course materials, click here.

TUPPER MACK WELLS CO-SPONSORS NEBC’S ANNUAL STORMWATER CONFERENCE
February 10, 2012

The Northwest Environmental Business Council (NEBC) will hold its annual conference on stormwater management in Tacoma on March 8, 2012.  Tupper Mack Wells is a supporting sponsor for the conference, which will bring together regulated parties, technology vendors, and regulators to address the challenges of third-party lawsuits, regulation, and enforcement.  Now in its fifth year, this one-day conference will examine the current compliance landscape and how property owners and managers can implement cost-effective prevention and control practices. For more information, contact Matt Wells at wells@tmw-law.com.

  • To view more information about the conference, click here.

ECOLOGY ANNOUNCES MODIFIED INDUSTRIAL STORMWATER GENERAL PERMIT
February 7, 2012

The Department of Ecology began a 45-day public comment period on proposed modifications to the 2010 Industrial Stormwater General Permit (ISGP) on February 1, 2012.  After March 16, 2012 at 5:00 p.m. the comment period will be closed.  The Pollution Control Hearings Board (PCHB) ordered Ecology to modify the ISGP to comply with the PCHB’s April 2011 ruling requiring alterations to the permit’s sampling and corrective action provisions.  Significant changes to the permit include the replacement of numeric effluent limitations for fecal coliform bacteria with narrative Best Management Practices (BMPs).  Approximately 80 industrial facilities discharging to 303(d)-listed impaired waterbodies would be affected by this change.  Ecology has scheduled several workshops on the proposed modified permit, and will hold a public hearing on March 12, 2012 at South Seattle Community College.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the draft permit and fact sheet, and to see upcoming public workshop dates, click here.

DEPARTMENT OF ECOLOGY PROPOSES LEGISLATION ON FECAL COLIFORM LIMITS IN INDUSTRIAL STORMWATER
January 30, 2012 

The Washington Department of Ecology has requested legislation to provide regulatory relief for facilities covered under the Industrial Stormwater General Permit (ISGP).  Prior to issuance of the final 2010 ISGP, Ecology took the position that it was not appropriate to require industrial facilities to comply with effluent limits for fecal coliform unless there was some activity at the facility that was specifically associated with bacterial contamination (for example, food processing).  In a significant reversal, Ecology’s final 2010 ISGP imposed strict numeric limits for fecal coliform on 91 industrial sites in Washington.  This standard has proven extremely difficult for industrial facilities to meet, particularly at sites visited by seagulls and other birds.  

Companion bills in the state Senate and House (SB 6393 and HB 2651) introduced at Ecology’s request would correct this problem by allowing Ecology to impose narrative limits (best management practices) rather than numeric limits.  Ecology plans to release a draft modification of the ISGP in early February 2012 that will implement this new approach to controlling fecal coliform.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the proposed legislation, click here.
  • To view the Focus Sheet on the legislation, click here.

STOCK-WATERING PERMIT EXEMPTION AFFIRMED BY WASHINGTON STATE SUPREME COURT
January 30, 2012

 In a 6-3 decision, the Washington Supreme Court concluded a lengthy dispute over Washington’s groundwater permit exemption statute, holding that groundwater withdrawn under the permit exemption for stock-watering is not limited to 5,000 gallons per day.  In Five Corners Family Farmers, et al. v. State of Washington, et al., the Court held that RCW 90.44.050 unambiguously allows stock-watering from permit-exempt wells without being limited to a specific quantity.  In a feature article published in the February 2012 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explains how the Court majority interpreted the statute by applying familiar principles of statutory construction and paying careful attention to sentence structure and punctuation. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here.
  • To view the Court’s opinion, click here.

TMW ATTORNEY BRAD DOLL ADDRESSES RISK MANAGEMENT AND STORMWATER AT NORTHWEST ENVIRONMENTAL BUSINESS COUNCIL CONFERENCE
January 23, 2012

Tupper Mack Wells attorney Brad Doll is slated to speak at the 2012 Northwest Environmental Business Council conference on Managing Stormwater in the Northwest on March 8, 2012 in Tacoma. Brad’s topic, “Risk Management & Stormwater,” will cover how third party lawsuits play a major role in enforcement of stormwater regulations and compliance. The talk will also address the risks and consequences of non-compliance, and the dilemmas faced by companies weighing the high cost of compliance. For more information, contact Brad Doll at doll@tmw-law.com.

  • For more information on the conference, click here.

WASHINGTON DEPARTMENT OF ECOLOGY ADJUSTS FISH CONSUMPTION RATES
January 10, 2012

Default fish consumption rates, which are used as a basis for environmental cleanup and pollution control standards, have been set forth in a Technical Support Document issued by the Department of Ecology in September 2011. Based on these new numbers, the Department is considering revisions to the Sediment Management Standards (SMS) rule (Washington Administrative Code [WAC] 173-204). The Department will also consider updates to the Water Quality Standards for Surface Waters (WAC 173-201A) and the Model Toxics Control Act (MTCA) Cleanup Regulation (173-340). The public comment period on the Fish Consumption document has been extended to Wednesday January 18, 2012. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the Fish Consumption Rates Technical Document, click here.

WASHINGTON STATE DEPARTMENT OF ECOLOGY COMMENT PERIOD FOR DRAFT MUNICIPAL STORMWATER PERMITS ENDS NEXT MONTH
January 10, 2012

In the fall of 2011, Ecology released draft municipal stormwater permits for a 3 1/2 month-long public comment period: Phase I Municipal Stormwater Permit, Western Washington Phase II Municipal Stormwater Permit and the Eastern Washington Phase II Municipal Stormwater Permit. The permits are open for public review and comment until February 3, 2012.

According to the DOE, the Department will consider public comments as it revises the permits and plans to issue the final permits in June 2012 with a response to comments. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the draft permits, click here.
  • For information on workshops, click here.

THE 2012 DRAFT STORMWATER MANAGEMENT MANUAL FOR WESTERN WASHINGTON COMMENT PERIOD ENDS IN FEBRUARY
January 10, 2012

Ecology began a 90-day public comment period for the Draft 2012 Stormwater Management Manual for Western Washington (SWMMWW) last November. After February 3, 2012, the comment period will be closed.

Although the Manual in and of itself is not a legally enforceable document, several of the NPDES Stormwater General Permits require its use. According to the Department of Ecology, key changes include new requirements for low impact development, revised guidelines for wetlands, new and revised construction BMPs, revised guidance on determining infiltration rates, and revised guidance for modeling in the Western Washington Hydrology Model. These changes will affect Western Washington permittees under the following General Permits: Boatyard Stormwater, Construction Stormwater, Industrial Stormwater, Municipal Stormwater, and Sand and Gravel Stormwater. For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the Draft Stormwater Management Manual for Western Washington documents, click here.
  • To view the calendar of January workshops, click here.

PUGET SOUND PARTNERSHIP EXTENDS COMMENT PERIOD FOR ACTION AGENDA UPDATE
January 2, 2012 (update)

The Puget Sound Partnership recently released its draft Action Agenda Update for 2012.  The public comment period will be extended by two weeks.  Comments will now be due on Friday, February 3rd, 2012.

For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the draft Action Agenda, click here.
  • To view the previous news story about the Action Agenda, click here.

CITY OF SEATTLE RELEASES DRAFT SHORELINE RESTORATION PLAN
January 2, 2012 (update)

The City of Seattle has released a second draft of its updated shoreline Master Program, revised to comply with rules set by the Washington Department of Ecology in WAC chapter 173-26.

The City also recently released its draft Shoreline Restoration Plan.  The Plan includes a detailed inventory of current shoreline conditions and identifies priority opportunities for restoration.  While the Plan does not establish regulatory requirements, several of the SMP’s policies point to the Plan as a guide for improving shoreline ecological function.  The deadline for public comments on the Shoreline Restoration Plan is February 10, 2012.

For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the City of Seattle’s Department of Planning and Development Shoreline Master Program Update website, and the second draft of the updated shoreline Master Program, click here.
  • To view the City’s draft Shoreline Restoration Plan, click here.
  • To view the previous news story about the updated shoreline Master Program, click here.

2011

PUGET SOUND PARTNERSHIP ISSUES DRAFT ACTION AGENDA UPDATE
December 19, 2011

The Puget Sound Partnership recently released its draft Action Agenda Update for 2012, and is accepting public comments through January 20, 2012.  The Puget Sound Partnership, comprised of local governments, Tribes, scientists, businesses and environmental organizations, has established 18 “recovery targets” for the year 2020 – including “ecosystem targets” and “pressure-reduction targets” focused on restoring and improving Puget Sound.  The complete draft Action Agenda update – consisting of over 500 pages – is available for review. 

For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the draft Action Agenda, click here.

TUPPER MACK WELLS ASSISTS CLIENT TO REDUCE ENFORCEMENT PENALTIES
December 13, 2011

A Seattle furniture refinishing business will avoid costly litigation and has achieved a favorable outcome under a settlement agreement with the Department of Ecology.  The company appealed a large enforcement penalty order to the Washington Pollution Control Hearings Board (PCHB), and negotiated a settlement which substantially reduced the penalty.  The negotiated settlement has received PCHB approval.

“This settlement avoids expensive litigation and benefits Washington’s environment overall,” said the Department of Ecology in a press release dated December 7, 2011.   K Seiler, Ecology’s hazardous waste and toxics reduction program manager, praised the company for “its commitment to practices that protect public and worker safety and health, and the environment.”  Tupper Mack Wells attorney Bradford Doll represented the client in this matter.  For more information, contact Bradford Doll at doll@tmw-law.com.

 


CITY OF SEATTLE PROPOSES NEW SHORELINE REGULATIONS
December 9, 2011 (update)

The City of Seattle has released a second draft of its updated shoreline Master Program, revised to comply with rules set by the Washington Department of Ecology in WAC chapter 173-26.  The new Shoreline Master Program will regulate development on or near Lake Washington, Lake Union, the Ship Canal, the Duwamish River, Elliott Bay, Puget Sound, Green Lake, and associated wetlands. 

The proposed SMP would require increased shoreline setbacks, new restrictions on shoreline stabilization, and limits on non-water-dependent businesses.  Seattle’s Department of Planning & Development is accepting public comments on the SMP update.  The deadline for public comments has been extended to December 23, 2011.  For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the City of Seattle’s Department of Planning and Development Shoreline Master Program Update website, and the second draft of the updated shoreline Master Program, click here.

ORONDO FRUIT COMPANY: WATER RIGHT RELINQUISHMENT AND THE “DETERMINED FUTURE DEVELOPMENT” EXEMPTION December 1, 2011

In a feature article in the December 2011 issue of Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack addresses a significant PCHB decision applying Washington’s water right relinquishment statute, Orondo Fruit Company, et al., v. Ecology, PCHB Nos. 10-164 and 10-165 (2011).  The PCHB’s unanimous ruling is a dramatic repudiation of the Department of Ecology’s overly-restrictive legal interpretations and approach to reviewing water conservancy board decisions. 

In Orondo, the PCHB has brought much-needed clarity and common sense to application of the “determined future development” exemption from relinquishment.  The PCHB decision also illuminates flaws in the water conservancy board decisionmaking process, which allows Ecology to raise an ever-changing series of objections that “may have caught the applicants in the middle of a ‘bring me a rock’ exercise” – which may spark legislative scrutiny of Ecology’s role in the water conservancy board system.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here.
  • To view the decision, click here.

POLLUTION CONTROL HEARINGS BOARD APPROVES WATER RIGHT CHANGE IN PAINTED SUMMER HILLS CASE
November 16, 2011

In a closely-watched case involving a groundwater permit for community domestic supply, the PCHB affirmed an increase in the number of connections from 12 to 19 homes to enable development of a clustered rural subdivision. 

In a split decision, the PCHB ruled that the Douglas County Water Conservancy Board properly allowed a change in the “manner of use” of the water right permit, reversing the Department of Ecology’s denial of the change.  A motion for reconsideration by Ecology was denied on November 16, 2011.  Tupper Mack Wells PLLC represents the water right holder, Painted Summer Hills, LLC.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the PCHB summary judgment decision, click here.
  • To view the PCHB decision on reconsideration, click here.
  • To view Board Member Lynch’s opinion on reconsideration, click here.
  • To view Board Member Mix’s opinion on reconsideration, click here.

CITY OF SEATTLE PROPOSES NEW SHORELINE REGULATIONS
November 7, 2011

The City of Seattle has released a second draft of its updated shoreline Master Program, revised to comply with rules set by the Washington Department of Ecology in WAC chapter 173-26.  The new Shoreline Master Program will regulate development on or near Lake Washington, Lake Union, the Ship Canal, the Duwamish River, Elliott Bay, Puget Sound, Green Lake, and associated wetlands. 

The proposed SMP would require increased shoreline setbacks, new restrictions on shoreline stabilization, and limits on non-water-dependent businesses.  Seattle’s Department of Planning & Development is accepting public comments on the SMP update through December 9, 2011.  For more information, contact Matt Wells at wells@tmw-law.com.

  • To view the City of Seattle’s Department of Planning and Development Shoreline Master Program Update website, and the second draft of the updated shoreline Master Program, click here.

WHITMAN COUNTY SUPERIOR COURT RULES IN FAVOR OF WASHINGTON STATE UNIVERSITY IN WATER RIGHTS APPEAL
November 3, 2011

Whitman County Superior Court Judge David Frazier issued a ruling affirming the Pollution Control Hearings Board in Cornelius, et al. v. Washington Dept. of Ecology, et al., Whitman County Superior Court No. 08-2-00181-2, an Administrative Procedures Act appeal involving water rights held by Washington State University to serve its Pullman Campus on November 3, 2011. 

The petitioners’ central claim was that the 2003 Municipal Water Law was unconstitutionally applied to the University’s water rights in this case.  The Superior Court agreed with the arguments by Washington State University and rejected the petitioners’ challenge. Tupper Mack Wells attorney Sarah Mack served as a Special Assistant Attorney General representing Washington State University.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the Superior Court decision, click here.
  • To view the PCHB April 2008 final order, click here.
  • To view the PCHB January 2008 summary judgment decision, click here

BRAD DOLL NAMED TO RISING STARS LIST FOR SECOND CONSECUTIVE YEAR
November 1, 2011

Tupper Mack Wells associate Bradford Doll has been named to the 2011 Rising Stars list as one of the top up-and-coming attorneys in the state.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor. 

The Rising Stars list is selected by the research team at Super Lawyers, a service of the Thomson Reuters, Legal division.  Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check.

Brad Doll practices in the areas of land use, environmental, and real estate law.  Previously, he worked in the Washington court system as a Supreme Court law clerk and as a judicial extern in King County Superior Court.  Prior to attending law school, Brad gained extensive business experience as an operations manager and business analyst at Amazon.com.

  • For more information about Brad click here.

COURT OF APPEALS ACCEPTS DIRECT REVIEW OF APPEAL OF INDUSTRIAL STORMWATER GENERAL PERMIT
October 11, 2011

Division II of the Washington Court of Appeals issued its Ruling Accepting Direct Review of the appeal by The Boeing Company of the 2010 Industrial Stormwater General Permit on October 11, 2011. 

Boeing has appealed decisions by the Pollution Control Hearings Board in Copper Development Association, Inc., et al. v. Ecology, et al., PCHB Nos. 09-135 through 09-141.  Tupper Mack Wells PLLC represents Boeing in this appeal.  For more information, contact James Tupper at tupper@tmw-law.com.

  • To view the Ruling Accepting Direct Review, click here
  • To view the PCHB final order, click here.

TUPPER MACK WELLS WELCOMES TARGA RESOURCES PARTNERS TO THE PACIFIC NORTHWEST
October 3, 2011

Tupper Mack Wells attorney Matt Wells assisted Targa Resources Partners LP with its environmental due diligence for its recent acquisition of Sound Refining’s crude oil storage and terminaling facility on the Hylebos Waterway in the Port of Tacoma.

The Targa Sound Terminal is Targa’s first facility in the Pacific Northwest.  It has 758,000 barrels of capacity and handles refined petroleum products, LPGs and biofuels.  For more information, contact Matt Wells at wells@tmw-law.com.


“PREVENTION, NOT ENFORCEMENT”:  THE CONUNDRUM OF “REGULATION” BETWEEN WATER RIGHTS IN WASHINGTON
August 1, 2011

In an article published in Western Water Law & Policy Reporter (August 2011), Tupper Mack Wells attorney Sarah Mack explores the latest effort by the Department of Ecology to gain authority to “regulate” between water rights.  Since the Washington Supreme Court decision in Rettkowski v. Ecology, 122 Wn.2d 219, 858 P.2d 232 (1993), Ecology has been precluded from determining “the existence, quantities, and relative priorities of various legally held water rights” outside of the context of a general stream adjudication conducted by a superior court. 

Recently, Ecology relied on its inability to “regulate” as a justification for denying a water right change.  In Anderson Parker Investments, LLC v. Ecology, PCHB No. 09-115 (2010), the Pollution Control Hearings Board endorsed Ecology’s rejection of a mitigation proposal that would have created a trust water right for instream flows, agreeing with Ecology that because of Rettkowski the agency could not prevent junior water right holders from using the water.  After Anderson Parker, water right applicants may be under pressure to support legislation to undo Rettkowski – or face new obstacles in fashioning mitigation proposals to enable approval of their applications. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here.

MATT WELLS CO-CHAIRS SEMINAR ON WATER RIGHT TRANSFERS

May 19, 2011

Tupper Mack Wells attorney Matt Wells and Jill Van Hulle of the Pacific Groundwater Group co-chaired the Water Right Transfers 2011 seminar sponsored by The Seminar Group on May 19, 2011 at the Westin Hotel in Seattle.  For more information, contact Matt Wells at wells@tmw-law.com.

  • For information and course materials, click here.

2010

MUNICIPAL WATER LAW UPHELD BY WASHINGTON SUPREME COURT
December 1, 2010 

Tupper Mack Wells attorney Sarah Mack published a feature article in the December 2010 issue of Western Water Law & Policy Reporter on the Washington Supreme Court decision in Lummi Indian Nation v. State, 170 Wn.2d 247, 241 P.3d 1220 (2010).  The Court unanimously affirmed the State of Washington’s 2003 municipal water law, which had been challenged by environmental organizations, individuals, and Indian tribes. 

In a significant victory for municipal water utilities in Washington, the Supreme Court reversed the decision by King County Superior Court Judge Jim Rogers, which had ruled unconstitutional the Legislature’s definitions of “municipal water supplier” and “municipal water supply purposes” as well as the statute that validated existing “pumps and pipes” certificates for municipal water supply.  The Supreme Court also rejected facial constitutional challenges to the legislation based on substantive and procedural due process.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here.
  • To view the Supreme Court opinion, click here.

SARAH MACK CO-CHAIRS 12TH ANNUAL CONFERENCE ON WATER LAW IN WASHINGTON
June 3, 2010

Tupper Mack Wells attorney Sarah Mack and Assistant City Attorney Kathy Gerla of the Seattle City Attorney’s Office co-chaired the 12th Annual Conference on Water Law in Washington sponsored by Law Seminars International on June 3 and 4, 2010 at the Sheraton Hotel in Seattle.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • For information and course materials, click here.

JAMES TUPPER SPEAKS AT SEMINAR ON CLEAN WATER AND STORMWATER
April 8, 2010

At the annual seminar on Clean Water and Stormwater sponsored by Law Seminars International in Seattle on April 8, 2010, Tupper Mack Wells attorney James Tupper gave a presentation entitled “Reducing Your Exposure:  A proactive approach to avoiding enforcement liability,” offering a lawyer's perspective on ways to avoid citizen suit liability under the Clean Water Act.  For more information, contact James Tupper at tupper@tmw-law.com.

  • For information and course materials, click here.

WASHINGTON LEGISLATURE ADDS “CERTIFIED WATER RIGHT EXAMINERS” TO WATER RIGHTS PROCESS
April 2, 2010

Tupper Mack Wells attorney Sarah Mack analyzes water rights legislation in an article published in the April 2010 issue of Western Water Law & Policy Reporter. Specifically, she looks at the legislation to create a new category of “certified water right examiners” in Engrossed Second Substitute Senate Bill 6267 enacted by the Washington Legislature on March 11, 2010. 

The new statute, part of a larger legislative package of water right processing improvements, provides for private “certified water right examiners” to perform final proof examinations of water right permits. The new “certified water right examiner” law is now codified at RCW 90.03.665.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here. 

2009

WASHINGTON DEPARTMENT OF ECOLOGY REVERSES COURSE ON RAINWATER COLLECTION
November 2009

In an article published in Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack explores the Washington Department of Ecology administrative policy issued on October 9, 2009 on collection of rainwater for beneficial use. In a departure from its previous position, the agency announced that existing law does not require a water right permit for on‐site storage and use of rainwater collected from a rooftop or “guzzler” system. Ecology’s about‐face has been praised by utility stormwater managers and advocates of sustainable building design. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

WASHINGTON COURT OF APPEALS ISSUES INTERPRETATION OF STATE’S WATER RIGHTS RELINQUISHMENT STATUTE
August/September 2009

In its third decision in four years applying Washington’s water right relinquishment statute, Division III of the Court of Appeals affirmed forfeiture of a water right from the Walla Walla River in Pacific Land Partners, LLC v. Ecology, 150 Wn.App. 740, 208 P.3d 586 (2009), based on nonuse after foreclosure by the federal Rural Economic and Community Development Agency (RECD). In an article published in Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack examines the court’s rejection of efforts by the current water right holder to claim various exceptions from relinquishment. The Pacific Land Partners decision underscores the need for continued beneficial use of water rights during and after foreclosure proceedings. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

WASHINGTON STATE ENACTS NEW LEGISLATION TO MODERNIZE ITS WATER RIGHTS ADJUDICATION PROCESS
June 2009

Tupper Mack Wells attorney Sarah Mack, in an article published in the Western Water Law & Policy Reporter, looks at the 2009 legislation to modernize the water rights adjudication process, in Chapter 332, Laws of 2009 (ESHB 1571), effective on July 26, 2009. Drawing on recommendations from the 2003 Water Disputes Task Force report, the Legislature has updated the law to make the adjudication process faster, less cumbersome, and less expensive for all parties. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

2008

WASHINGTON COURT OF APPEALS AFFIRMS WATER RIGHT RELINQUISHMENT, REJECTS EXEMPTIONS FOR CITY OF UNION GAP
December 2008

On November 13, 2008, the Washington Court of Appeals dealt a blow to the City of Union Gap in its efforts to convert an unused industrial water right to municipal supply purposes. In an article published in the Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack examines the court’s decision to affirm a summary judgment ruling by the Washington Pollution Control Hearings Board (PCHB) that an intended transfer of an industrial water right to the City of Union Gap did not occur soon enough to avoid relinquishment, rejecting the City’s efforts to rely upon relinquishment exemptions for municipal water supply and a “determined future development.” For more information, contact Sarah Mack at tmw-law.com.

  • To review the complete article, click here.

RECENT PCHB DECISIONS DISCUSSED AT 2008 WASHINGTON WATER LAW CONFERENCE
April 2008

Tupper Mack Wells attorney Sarah Mack co-chaired the 17th Annual Conference on Washington Water Law sponsored by Law Seminars International in Seattle on April 10-11, 2008.  Sarah presented a paper on recently-issued decisions in Pollution Control Hearings Board cases, including Will v. Ecology, PCHB No. 05-023, Naselle Water Co. v. Ecology, PCHB No. 07-057, Welke v. Ecology, PCHB No. 07-013, Burton Water Company v. Ecology and Misty Isle Farms, PCHB No. 07-100, and Cornelius v. Ecology and Washington State University, PCHB No. 06-099.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To read the Water Law Update, click here.

STATE POLLUTION CONTROL HEARINGS BOARD LIMITS ‘ANTI-ENLARGEMENT’ RULE FOR WATER RIGHT CHANGES
March 2008

The March issue of Western Water Law & Policy Reporter contains an article by Tupper Mack Wells attorney Sarah Mack regarding the Washington Pollution Control Hearings Board (PCHB) decision to cut the so‐called “anti-enlargement principle” down to size. In an appeal of changes to several groundwater rights held by Washington State University, the PCHB ruled that the prohibition against “enlargement” of a water right applies only to the combined total quantity of water withdrawn from an additional well and an original well authorized under a water right. The PCHB specifically overruled a 1989 decision that had suggested a much broader scope for an “anti-enlargement” rule. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

U.S. DISTRICT COURT APPROVES HISTORIC GROUNDWATER SETTLEMENT BETWEEN STATE OF WASHINGTON AND LUMMI INDIAN NATION
January 2008

Following several years of litigation, Washington’s first-ever tribal-state-federal water rights settlement has received federal court approval in Seattle. Tupper Mack Wells attorney Sarah Mack examines this decision in the January issue of the Western Water Law & Policy Reporter.

On November 20, 2007, U.S. District Court Judge Thomas Zilly signed a judgment and order approving the settlement to resolve a long-standing water conflict on the Lummi Reservation in northwest Washington. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the complete article, click here.

2007

YAKIMA COUNTY SUPERIOR COURT AFFIRMS RELINQUISHMENT OF WATER RIGHTS SOUGHT BY CITY OF UNION GAP
October 2007

On October 9, 2007, the Yakima County Superior Court upheld a ruling by the Washington Pollution Control Hearings Board (PCHB) that an intended transfer of an industrial water right to the City of Union Gap did not occur soon enough to avoid relinquishment. In an article in the Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack examines the court’s affirmance of the PCHB’s conclusion that the City’s plan to acquire the water rights of a defunct slaughterhouse was not sufficiently “definite” by the time the five‐year relinquishment period had expired. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.
  • See the February 2006 issue of the Western Water Law & Policy Reporter for a discussion of the PCHB ruling in the Union Gap case, 10 West. Water L. & Pol’y Rptr. 98 (Feb. 2006).

WASHINGTON DEPARTMENT OF ECOLOGY ADOPTS NEW WATER MANAGEMENT RULE FOR THE WALLA WALLA BASIN
September 2007

The Washington Department of Ecology adopted an updated water management rule for the Walla Walla Basin, an area where increased population and economic growth have placed pressure on already‐limited water resources. The Walla Walla Basin, renowned for its vineyards and wineries, straddles the Washington‐Oregon border. In an article in Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack addresses the new rule, which applies only to the Washington side of the basin, establishes instream flow water rights, places controls on permit‐exempt withdrawals from the shallow gravel aquifer system, and limits future withdrawals during high flow periods. In a press release announcing the new rule, Ecology Director Jay Manning called the new rule “a critical step in the daunting task before us – restoring stream flows, while meeting current and future water demand.”

The updated rule, which took effect on September 5, 2007, can be found at Washington Administrative Code (WAC) chapter 173‐532. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

WASHINGTON GOVERNOR ISSUES “CLIMATE CHANGE CHALLENGE” EXECUTIVE ORDER TO ADDRESS WATER RESOURCES ‐‐ DEPARTMENT OF ECOLOGY GEARS UP
June 2007

Tupper Mack Wells attorney Sarah Mack examines the State of Washington’s response to climate change in the June issue of Western Water Law & Policy Reporter. In February 2007, Governor Christine Gregoire issued Executive Order 07‐02, launching a “Washington Climate Change Challenge” initiative to achieve ambitious goals of reducing greenhouse gas emissions, developing clean energy, and preparing for the impact of global warming. Among other things, the executive order directs the Washington Department of Ecology and other agencies to evaluate and prepare for the impact of global warming on water supply and management. In response, the Department of Ecology has begun to organize a climate change committee on water resources. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

WASHINGTON POLLUTION CONTROL HEARINGS BOARD AFFIRMS DEPARTMENT OF ECOLOGY’S AUTHORITY TO ISSUE NEW GROUNDWATER RIGHTS WITH MITIGATION
April 2007

The Washington Pollution Control Hearings Board has upheld the Department of Ecology’s authority to issue water rights relying upon mitigation through streamflow augmentation. Tupper Mack Wells attorney Sarah Mack describes this case in an article in the April issue of the Western Water Law & Policy Reporter. Although the PCHB reversed two groundwater permits because it found that Ecology had erred in predicting surface water impacts, the Board entered key legal rulings that will likely encourage the use of streamflow augmentation as mitigation for new groundwater rights. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.

WASHINGTON COURT OF APPEALS UPHOLDS PRELIMINARY PERMIT FOR GROUNDWATER TESTING AS CATEGORICALLY EXEMPT UNDER SEPA
February 2007

In an article published in Western Water Law & Policy Reporter, Tupper Mack Wells attorney Sarah Mack addresses a February 6, 2007 opinion by Division II of the Washington State Court of Appeals upholding a preliminary permit issued by the Department of Ecology for aquifer testing. The court ruled that environmental review of a proposed municipal wellfield project is not required before authorizing test wells and groundwater pumping to gather information on the impacts of the project. Utility managers and agency regulators have welcomed this judicial clarification of the applicability of Washington’s State Environmental Policy Act (SEPA) to a key aspect of water right decision‐making. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To review the complete article, click here.
©2014 Tupper | Mack | Wells PLLC
The contents of this site are provided for informational
purposes only and do not constitute legal advice