Washington’s Extreme Drought Stresses Water Users, Regulators, and Legal System
Adam Gravley
Washington’s extreme drought is not only impacting the environment, agriculture, and utilities, it is also testing the legal and regulatory systems that govern use of our water resources. As of early August, the U.S. Drought Monitor shows the entire state of Washington in “severe drought” with one-third in “extreme drought.” The state backed into what is being called the worst drought in state history.
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IN BRIEF
Proposal for First Wetland/Conservation Mitigation Bank in King County
The U.S. Army Corps of Engineers (Corps) and Washington State Department of Ecology (Ecology) are considering a proposal to establish the Keller Farm Mitigation Bank, which would be the first mitigation bank in King County. The Joint Public Notice was issued in July and will expire on August 22, 2015. Habitat Bank, LLC is the applicant for the wetland mitigation bank, which currently proposes the re-establishment, rehabilitation, and enhancement of approximately 91 acres of wetland, stream, and associated upland habitat. The Keller Farm project is significant as it will diversify mitigation channels available in King County—under federal regulations, mitigation must be accomplished in one of three ways: mitigation banking, in-lieu fee programs, or permittee-sponsored mitigation. The Corps and Ecology are soliciting comments from interested parties in order to identify project aspects that need to be addressed during the bank review process.
State Found to Violate Clean Water Act
In a recent decision, the Washington State Court of Appeals, Div. II held that the Department of Ecology violated the Clean Water Act and its rules by issuing a permit allowing BP West Coast Products to discharge pollutants from its oil refinery which failed whole effluent toxicity (WET) testing – which measures the aggregate toxic effect of an effluent. The permit condition in question specified that a single failed WET test would not violate the permit terms so long as BP took specific subsequent measures. The decision confirms that while states have broad authority to regulate discharges through their NPDES programs to eliminate and reduce the discharge of pollutants into state waters, that authority does not extend to permitting discharges of pollutants at levels constituting a violation of water quality standards, even if the permit also requires subsequent steps that might mitigate such discharges.
Seattle Mixed Zones Code: Change & Expansion
The Planning, Land Use and Sustainability (PLUS) committee of the Seattle City Council is considering changes to the Land Use Code for Seattle Mixed Zones (SM). SM is an intensely urban mixed use zone that allows for varying building heights and a wide range of commercial and mixed uses. It was originally adopted for the South Lake Union area. Over the last few years, SM zoning has been applied in neighborhoods outside of South Lake Union such as the West Dravus area of Interbay. In addition to changes to simplify the code, staff is proposing changes that would allow the SM zone to be applied more seamlessly outside of South Lake Union, including likely future rezones in the University District and North Rainer Beach neighborhoods. Changes may include incentives for additional floor area and height, prohibitions on principal use parking lots and limitations of the size of general manufacturing spaces for such products as paint, cosmetics, and pharmaceuticals. The PLUS committee will hold a public hearing on August 18th with a possible vote by the full Council on September 15th. Agenda and more information can be accessed on the City’s site.
Lesson for Landlords with a Nuisance
The Washington Court of Appeals recently upheld the eviction of a commercial tenant based on the creation of a nuisance. The tenant claimed that it should be entitled to relief from forfeiture under provisions of the Unlawful Detainer Act. However, the court held that the Act does not allow a tenant to cure an unlawful detainer arising from a nuisance, nor may a tenant claim post-judgment relief from forfeiture in those circumstances. In contrast, the Act does allow tenants a cure period when an unlawful detainer claim is based on non-payment of rent or breach of other lease terms. One lesson for landlords faced with tenants whose actions rise to the level of nuisance may be to terminate the lease based on the nuisance claim rather than on breach of the lease, to avoid the kind of cure and restitution claims raised by the tenant in this case.
Know How & What To Appeal: LUPA vs. WAPA Showdown
Division I’s recent decision in Klineburger v. King County is an interesting case that attempts to illuminate the boundary between Washington’s Land Use Petition Act (LUPA) and the Administrative Procedures Act (WAPA). The Court explains: “Here, the court had the authority under WAPA to review an Ecology determination following a PCHB decision .... But by reaching the merits of Ecology’s decision before the Klineburgers had exhausted their administrative remedies, the court exercised its jurisdiction prematurely and exceeded its authority under LUPA.” (p. 19) Of particular note, the decision presents a warning for the unwary when looking to appeal Ecology’s decisions. Read more analysis here.
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