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News, Publications & Seminars


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.
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