Recently in Department of Ecology Category

Join GTH at the Washington Future Energy Conference

September 9, 2014

Please join us at the Washington Future Energy Conference on November 5. Gordon Thomas Honeywell is proud to be a major sponsor of this event. Now in its fifth year, the Future Energy Conference brings together energy innovators, utilities, scientists, investors, and many others to discuss the future of the energy industry in our state.

Speakers include GTH partner Eric Christensen, who will moderate a panel discussing the electrification of Washington's transportation system. The panel will include Steve Marshall of the Center for Advanced Transportation and Energy Solutions, Charles Knutson, Senior Policy Advisor to Washington Governor Jay Inslee, and John McCoy, Legislative Director for the Seattle Electric Vehicle Association.

We look forward to seeing you November 5.

EPA Issues Final Rule on Cooling Water Intake, Significantly Affecting Electric Power Generation and Water-Intensive Manfacturing

May 20, 2014

Yesterday, the U.S. Environmental Protection Agency ("EPA") issued a Final Rule under Section 316(b) of the Clean Water Act ("CWA") designed to reduce damage to aquatic organisms from entrainment or impingement in large cooling water intake structures. The rule covers facilities that are designed to withdraw more than two million gallons per day ("mgd") from "waters of the United States" and that withdraw at least 25% of their cooling water from those waters. EPA estimates the rule will cover more than 1,000 major facilities, about half of which are power plants and the other half manufacturing plants. Smaller facilities that do not meet the 2 mgd threshhold but are otherwise subject to the CWA will remain subject to Section 316(b), with specific requirements to be developed in a case-by-case basis.

In contrast to most other provisions of the CWA, which regulate discharges of pollutants, Section 316(b) regulates the intake of water. Section 316(b) requires that "the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." To carry out this statutory mandate, the Final Rule has three major features. First, facilities meeting the 2 mgd threshold are required to select one of seven design options for the cooling water intake structures in order to meet Section 316(b)'s "best technology available" requirement for minimizing damage to aquatic ecosystems. Second, facilities withdrawing very large quantities of water -- 125 mgd or more -- must conduct studies to help permitting authorities identify site-specific measures that meet Section 316(b)'s requirements.

Continue reading "EPA Issues Final Rule on Cooling Water Intake, Significantly Affecting Electric Power Generation and Water-Intensive Manfacturing " »

Governor Inslee Issues Comprehensive Executive Order on Climate Change

April 29, 2014

Washington Governor Jay Inslee today issued an Executive Order that will address Washington's greenhouse gas ("GHG") emissions on many different fronts. Issued in apparent response to the legislative logjam that has developed around the Climate Legislative and Executive Workgroup, the Executive Order (No. 14-04), requires actions in the following areas:

Cap-and-Trade Legislation: The Executive Order creates a new Carbon Emissions Reduction Task Force to develop a legislative recommendation for a "cap and-market" mechanism, which would limit carbon emissions and establish an emissions allowance trading system designed to achieve GHG reductions in the most efficient manner. The Task Force, which includes 21 members from business, labor, health, and public interest organizations, meets for the first time today. It is instructed to provide recommended legislative by November 21, 2014.

Coal-Fired Electricity: The Executive Order directs the Governor's Legislative Affairs and Policy Office ("LAPO") to seek "negotiated agreements with key utilities and others" to reduce coal-fired electricity imported from outside the state and transition to cleaner sources. With the transition of Washington's only coal-fired plant at Centralia now well underway, Washington's remaining sources of coal-fired electricity will be generators located in states to the east, such as the Colstrip plant in Montana. Addressing the "coal-by-wires" issue is therefore the last remaining front for attacking significant GHG emissions in the electricity sector. The Executive Order requests help from the Washington Utilities and Transportation Commission ("UTC") and the Northwest Power and Conservation Council to "actively assist and support" the transition away from coal-fired electricity, although, as we've previously discussed, the UTC has already moved significantly in this direction.

Continue reading "Governor Inslee Issues Comprehensive Executive Order on Climate Change" »

Bully for Biomass: Washington Supreme Court Rejects Greenhouse Gas Claims, Upholds Finding of No Significant Environmental Impact for Biomass Facility

February 27, 2014

The Washington Supreme Court today rejected claims that the potential for greenhouse gas ("GHG") from a biomass facility triggers the requirement to prepare a full Environmental Impact Statement under Washington's State Environmental Protection Act ("SEPA"). Today's decision promises to greatly simplify the permitting process for projects planning to use woody biomass and should help clarify how GHG emissions are treated for biomass-fired facilities, a question that has bedeviled courts and regulators in other contexts. PT Air Watchers et al. v. State of Washington et al., No. 88208-8 (issued Feb. 27, 2014).

The controversy arose from Port Townsend Paper Company's plans to modernize the boiler at its paper mill by increasing the use of woody biomass to fuel the boiler, increase the boiler's firing efficiency, and adding a 25 megawatt generator to produce electricity. The paper company prepared a SEPA "checklist" in accordance with WAC 197-11-960. The checklist concluded that, because the project would reduce burning of fossil fuels by burning woody biomass instead, it would produce a net reduction in GHG emissions. The Department of Ecology agreed, concluding that no EIS was required because the project would not produce significant environmental impacts. A coalition of local environmental groups challenged this finding, but the challenges were rejected both in an administrative appeal and by the reviewing courts. The Washington Supreme Court accepted review and today affirmed Department of Ecology's finding that no significant environmental impacts requiring preparation of an EIS would result from the project.

Continue reading "Bully for Biomass: Washington Supreme Court Rejects Greenhouse Gas Claims, Upholds Finding of No Significant Environmental Impact for Biomass Facility" »

Ninth Circuit Denies Rehearing in Greenhouse Gas Case, Continues to Struggle With Standing in Climate Litigation

February 13, 2014

A recent order of the U.S. Court of Appeals for the Ninth Circuit illustrates the extent to which courts continue to struggle with otherwise routine legal issues when confronting claims related to climate change and greenhouse gas emissions. The order denies rehearing of last year's Ninth Circuit panel decision in Washington Environmental Council v. Bellon, which concluded that a group of environmental plaintiffs seeking to force the Washington Department of Ecology to issue greenhouse gas regulations lacked standing to bring the claim.

The rehearing order was unusual in several respects. Ordinarily, a dissatisfied party to the case seeks rehearing and, in nearly all cases, rehearing is denied in a short order simply noting that an insufficient number of judges supported the request for rehearing. Perhaps the most unusual aspect of the Ninth Circuit's order is that it arose from a Ninth Circuit judge seeking rehearing, rather than from one of the parties. This suggests that at least some of the Ninth Circuit's judges view the October panel opinion as not just incorrect, but so seriously wrong that the Court should re-examine the decision even in the absence of any request to do so by the losing parties. The order is also unusual in that it included two impassioned opinions alternatively defending and attacking the October panel opinion.

Continue reading "Ninth Circuit Denies Rehearing in Greenhouse Gas Case, Continues to Struggle With Standing in Climate Litigation" »

Minimum Streamflows: Washington Supreme Court Rejects Claim of Broad Authority to Override Minimum Streamflow Requirements

October 3, 2013

The Supreme Court of Washington today issued an opinion sharply limiting the Department of Ecology's authority to limit minimum streamflow requirements to serve "overriding considerations of the public interest." Today's decision, arising from a long-running conflict concerning minimum streamflows on the Skagit River, finds that this statutory language is "very narrow" and Ecology can override minimum streamflows only in "extraordinary circumstances." The Court therefore rejects Ecology's conclusion that it is authorized to make exceptions to minimum flow requirements on a demonstration that net economic benefits will result. As a result, it will be much more difficult for Ecology to accommodate new water withdrawals to support economic development in those basins where withdrawal limits imposed by minimum streamflows have been reached. (Swinomish Indian Tribal Community v. Department of Ecology, No. 87672-0 (issued Oct. 3, 2013)).

In 1969, the legislature adopted a minimum streamflow statute authorizing Ecology to implement minimum streamflows to protect fish, wildlife, water quality, and aesthetic values of the state's streams and rivers. A minimum streamflow is functionally equivalent to any other water right in that it is subject to the venerable "first in time, first in right" principle of Western water law. That is, water users with rights arising after the minimum streamflow is established cannot withdraw water if the withdrawal would impair the minimum streamflow. Today's Supreme Court decision defines the scope of Ecology's authority to authorize water withdrawals that conflict with minimum streamflows "only in those situations where it is clear that overriding considerations of the public interest will be served." RCW 90.54.020(3)(a).

Continue reading "Minimum Streamflows: Washington Supreme Court Rejects Claim of Broad Authority to Override Minimum Streamflow Requirements" »

Fish Hatcheries, the Federal Reclamation Act, and State Water Law: Ninth Circuit Rejects Lawsuit, Reaffirming Primacy of State Water Law

September 11, 2013

The U.S. Court of Appeals for the Ninth Circuit today rejected a claim brought by environmental advocates who asserted that the Leavenworth National Fish Hatchery has been operating illegally because it has not obtained permits to divert water as required under Washington law. While the decision leaves the door ajar for the environmental advocates to pursue their claims in state forums, the decision strongly reinforces the long-held principle that federal reclamation facilities must abide by state law governing water rights. Wild Fish Conservancy v. Jewell, No. 10-3503 (issued Sept. 11, 2003).

The central question raised by the environmental plaintiffs is weather the Leavenworth hatchery, which was constructed to mitigate for damage to fisheries caused by construction of the Grand Coulee Dam, is required by Section 8 of the Reclamation Act of 1902 to obtain water rights under Washington law before it can divert water from Icicle Creek. Icicle Creek is a major tributary of the Wenatchee River, which, in turn, is a major tributary of the Columbia River. Reflecting a long-held tenet of federal policy that federal projects should generally comply with state water law, Section 8 requires the federal government to "proceed in conformity" with state water law and also includes strong language protecting the water rights of landowners, appropriators, government entities, and others established under state law. The court rejected the environmental plaintiffs' claim, concluding that the plaintiffs lacked standing. While standing decisions often leave the substantive question unaddressed, the court's reasoning in today's case reinforces the primacy of state law under Section 8. The decision therefore is likely to prove significant for federal facilities constructed under the Reclamation Act, as well as for facilities subject to other federal statutes containing language similar to Section 8. These include, among many others, Section 27 of Federal Power Act (16 U.S.C. Sec. 812) and Section 10(h) of the Northwest Power Act (16 U.S.C. Sec. 839g(h).

Continue reading "Fish Hatcheries, the Federal Reclamation Act, and State Water Law: Ninth Circuit Rejects Lawsuit, Reaffirming Primacy of State Water Law" »

Washington Supreme Court: Water Pollution Control Act Covers Non-Point Pollution, Takings Claim Rejected

August 15, 2013

The Washington Supreme Court today issued an opinion reading the state's Water Pollution Control Act ("WPCA") broadly to cover non-point sources and concluding that the Washington Department of Ecology ("Ecology") is authorized to issue orders to control non-point sources even without definitive proof that the non-point source is a direct cause of water pollution. The Court also rejected a claim of an unconstitutional "taking" for lack of a sufficient evidence. The opinion substantially strengthens Ecology's hand in dealing with non-point sources, and may result in stronger enforcement action aimed at, for example, requiring landowners to implement "Best Management Practices" to help control non-point pollution. (Lemire v. State of Washington, Dept. of Ecology, No. 87703-3 (issued Aug. 15 2013)).

The case arises from a lengthy dispute between Ecology and Columbia County rancher Joseph Lemire concerning pollution in Pataha Creek, which runs through Lemire's property. Ecology identified Pataha Creek as polluted under the state's water quality assessment, which is required under the federal Clean Water Act. In a 2003 evaluation of Columbia County's watersheds, Ecology and the Columbia Conservation District identified conditions on Lemire's ranch that were detrimental to water quality. These included, for example, overgrazing, damage to riparian vegetation, and excrement in the riparian zone, which Ecology believes likely contributed to high water temperatures, reduced dissolved oxygen, damage to aquatic life, and the presence of pathogens in the water. To remedy these problems, Ecology recommended measures such as construction of fences to exclude cattle from the riparian zone and off-stream watering troughs. Eventually, after unsuccessfully negotiations with Lemire, Ecology ordered him to implement these measures, relying on the WPCA to justify its action.

Continue reading "Washington Supreme Court: Water Pollution Control Act Covers Non-Point Pollution, Takings Claim Rejected" »

Please Join Us June 6 in Tacoma for Re-Using Contaminated Lands Conference

May 16, 2013

We invite you to join us June 6 in Tacoma for a conference entitled "Re-Using Contaminated Land: Transactions & Technologies." The conference will address the legal and technical aspects of "brownfields" development. Gordon Thomas Honeywell is proud to be a premiere sponsor of the conference. The agenda and other information is available here.

Gov. Inslee Fills Key Energy and Natural Resource Positions With A Mix of Insiders and Experienced Government Hands

February 12, 2013

With this week's announcement that David W. Danner has been appointed the new Chairman of the Washington Utilities & Transportation Commission ("UTC"), Washington Governor Jay Inslee has completed the slate of key positions influencing energy and natural resources policy in the state. The key appointments are a mixture of long-time Inslee confidants and individuals with long experience in state government.

Mr. Danner is typical of Inslee appointees who have worked for many years in Washington state government. Mr. Danner has served since 2005 as the Executive Director of the UTC. Prior to that, he served as Gov. Gary Locke's policy advisor on energy and environmental issues, and served on the State's Pollution Control Hearings Board and Shoreline Hearings Board. Mr. Danner will fill the seat recently vacated by Commissioner Patrick Oshie. He will replace Jeff Goltz as UTC Chair, although Commissioner Goltz will continue to serve on the UTC along with Commissioner Phil Jones.

Other key appointments include:

Continue reading "Gov. Inslee Fills Key Energy and Natural Resource Positions With A Mix of Insiders and Experienced Government Hands" »