Tupper Mack Wells PLLC
Newsletter                 March 2016
Seated, left to right: Cara Vallier, Lynne Cohee
Standing, left to right: Courtney Straight,  Matt Wells, Sarah Mack,
Brad Doll, James Tupper and Sue Barragan

 

 

Happy Spring! We are delighted to announce that Brad Doll has become a partner at Tupper Mack Wells. Brad's expertise in permitting, compliance, and litigation is a valuable asset to the firm and to our clients. 

 

Our work continues on many complex environmental policy issues affecting Washington state and the Northwest region. Included below are articles and links to information on several recent developments in natural resource, land use, and environmental law and policy. 

 

If you have questions about these matters or any other issues, feel free to contact us. It would be great to hear from you. 

 -- The attorneys and staff at  Tupper Mack Wells PLLC




Tupper Mack Wells Listed in
2016
Best Lawyers and Best Law Firms

James Tupper, Sarah Mack and Matt Wells are honored to have been selected by their peers for listing in the The Best Lawyers in America© 2016.

We are also proud to announce that Tupper Mack Wells is included in the 2016 "Best Law Firms" list released by U.S. News & World Report and Best Lawyers. TMW is listed in the Metropolitan Tier 1 category in Seattle for Environmental Law, Land Use & Zoning Law, Environmental Litigation, Land Use Litigation and Natural Resources Law.



James Tupper 
to Speak at
Real Estate Conference

On March 22, 2016, TMW attorney James Tupper will speak at the 22nd Annual Advanced Conference on Real Estate Purchases and Sales, to be held in Seattle.

James will address the topic of environmental due diligence, focusing on new developments in environmental law with a particular impact on purchase and sale transactions. More information on the conference can be found here.



"Green"
Edition of
Northwest Lawyer Features Article on Water Right Transfers

An article by TMW attorney Sarah Mack entitled "Getting Water to Where It's Needed: Opportunities and Risks Under Washington's Water Rights Laws" was published in the September 2015 edition of the Washington State Bar Association's magazine, Northwest Lawyer.

In times of water scarcity, many people turn to already-established water rights in an effort to satisfy water demands for people, farms, and fish. Various pitfalls in changing existing water rights, including the risk of relinquishment
and restrictions on irrigation rights under the Fam
ily Farm Water Act, are all discussed in the article.




Construction
Stormwater
General Permit Appealed by Several Industry Organizations

The Department of Ecology issued a new Construction Stormwater General Permit, which became effective on January 1, 2016. The permit now faces an appeal to the Pollution Control Hearings Board by several construction industry groups, represented by TMW attorneys James Tupper and Brad Doll.

The basis for the appeal includes the issuance of conditions that are unreasonable and contrary to established construction  practices. For more on this appeal and its basis, click here .



Water Quality Standards:  Policy Differences Between EPA and Washington State Department of Ecology
 
On February 1, 2016, the Washington Department of Ecology published draft revisions to the state Water Quality Standards, Chapter 173-201A WAC, which include human health water quality criteria.  The proposed Ecology rule includes important implementation tools for compliance schedules, variances and intake credits.  Ecology is also proposing to regulate Combined Sewer Overflow treatment systems on a narrative basis using best management practices.
 

The US Environmental Protection Agency has simulta neously drafted proposed standards for Washington, which differ  significantly from Ecology's draft regulation.  One of the chief differences between the regulations involves the regulation of chemicals -- in particular, polychlori nated biphenyls (PCBs), arsenic, and mercury.
 
Stark differences between the two agencies' approaches are evident in their criteria for PCBs.  EPA is proposing a PCB criterion of 7.3 pg/L, compared to 170 pg/L in Ecology's draft regulation.  The PCB criterion could have a profound impact in implementation of the Clean Water Act in Washington.  Ambient PCB concentrations in Puget Sound and its major tributaries are well below the Ecology criterion but above the EPA level. If EPA's rule were imposed it could result in billions of dollars in new treatment requirements for local wastewater treatment plants, significant restrictions on economic development, and curtailment of federal, tribal and state fish hatchery programs.   
 
On behalf of the Northwest Pulp & Paper Association and a broad industrial coalition, TMW attorneys James Tupper, Brad Doll and Lynne Cohee prepared   comments on EPA's proposed rule and comments on the rule proposed by Ecology in 2015.

Municipal Stormwater Dispute Over Vested Rights Heads to
Supreme Court

In January, Division II of the Court of Appeals held that development regulations required under Washington's Phase I municipal stormwater permit are "land use control ordinances" subject to Washington vested rights statutes. 

The Pollution Control Hearings Board had affirmed the Department of Ecology's 2013-2018 Phase I Municipal Stormwater  Permit, which requires that certain cities and counties adopt regulations for controlling stormwater runoff and discharges to municipal stormwater systems for new development, redevelopment, and construction activities. The Court of Appeals held that the federal Clean Water Act does not preempt Washington's vested rights statutes, which apply to building permit applicants (RCW 19.27.095(1)), subdivision applicants (RCW 58.17.033(1)), and parties to development agreements (RCW 36.70B.180).  

The Court invalidated Ecology's stormwater permit condition requiring cities and counties to impose the new rules on projects with vested development rights.  Ecology and Puget Soundkeeper Alliance and other environmental organizations have filed petitions for review with the Washington Supreme Court, which can be found on our website at this link.

State Supreme Court Rebuffs Local Initiative on "Rights of Nature" for Spokane River
 
On February 4, 2016, the Washington Supreme Court rejected a ballot initiative in the City of Spokane that would have extended the novel concept of "rights of nature" to the Spokane River by giving the river an enforceable legal right to "exist and flourish." The Court excluded the initiative from the ballot because it attempts to regulate water law and other subjects outside the scope of local initiative authority. 
 
The group Envision Spokane's attempt to confer on the Spokane River enforceable legal rights to "sustainable recharge, sufficient flows to support native fish, and clean water" is part of a broader effort to establish rights of ecosystems or "rights of nature" as a rights-based legal framework to protect the environment. 

Applying the straightforward rationale that local municipal initiatives are an improper vehicle for changing state and federal laws, the Court's decision has severely dampened the prospects for additional "rights of nature" initiatives at the local level.  Envision Spokane and other proponents of "rights of nature" laws must resort to the State Legislature or the state initiative process. Read more...

23rd Avenue  Business Stabilization Fund: 
A Change in Seattle's Policy? 

On February 22, 2016, Seattle Mayor Ed Murray announced the City of Seattle would provide $650,000 in funds as well as tax deferrals for businesses affected by roadwork on a 1.5-mile stretch of 23rd Avenue. Businesses on 23rd Avenue complained after the City undertook extensive street improvements, with a one-mile section of 23rd Avenue completely closed to northbound traffic. The City had previously refused assistance to local businesses, citing a policy against providing mitigation funds for City construction projects and restraints imposed by the Washington Constitution.
 
An article by TMW attorney Brad Doll examines the City's 23rd Avenue Business Stabilization Fund in the context of other recent City efforts to mitigate impacts on businesses affected by City construction. Read more...

Water Right Permits: Supreme Court Jettisons "Overriding Considerations of the Public Interest"
 
In October 2015, the Washington Supreme Court issued a 6-3 decision in Foster v. Ecology
, rejecting reliance on "overriding considerations of the public interest" to allow a new groundwater right for the City of Yelm that would conflict with regulatory minimum instream flows and stream closures. The court majority's highly restrictive view of the "overriding considerations of the public interest" exception in the Water Resources Act rests on a novel construction of the word "withdrawal" as a merely temporary use of water that cannot be an "appropriation" under the Water Code.
 
In a feature article published in the  Western Water Law & Policy Reporter , TMW attorney Sarah Mack explored the statutory framework for minimum instream flow regulations, the Court's increasingly restrictive approach to the "overriding considerations of the public interest" exception in state water policy, and the potentially far-reaching consequences of the Court's interpretation on groundwater permitting and management of permit-exempt wells.  
 
Two motions for reconsideration, filed in November 2015, were denied on March 3, 2016. Read more...


Stay informed

 

Our updated website now has a searchable database of  archived news stories and articles

 

Keep in touch
 

We invite you to join us on Facebook, LinkedIn and Twitter.

                

   Like us on Facebook View our profile on LinkedIn Follow us on Twitter

 

Tupper Mack Wells PLLC

  

Northwest attorneys experienced in environmental policy, regulatory compliance, water resources, contaminated site remediation, land use permitting, and environmental review.

Creating effective, balanced solutions that work for you.