News, Publications & Seminars

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.

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.