Environmental Law in Washington State

Court of Appeals Issues New Opinion Upholding Jefferson County's Channel Migration Zone Critical Area Ordinance

2012-01-27T14:01:00.000-08:00

Yesterday, Division II of the Court of Appeals withdrew its prior opinion in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 4027-6-II, and issued a new opinion. The new opinion finds that the County properly applied "best available science" in requiring retention of vegetation in valley bottoms with migrating river channels.

We agree with the Board that the County addressed the relevant sources of best available scientific information included in the decision malting on the record as WAC 365-195-915(1)(b) requires. As the Board observed, the BOCC 2008 ordinance specifically identified a 24-page bibliography of scientific literature that the BOCC evaluated in order to develop the critical areas regulations See Ordinance 03031708 at 17 Ex A. Additionally, the findings in the 2008 ordinance singled out detailed studies and reports by the Department of Ecology, the Bureau of Reclamation, Perkins Geosciences, and a former manager of the County natural resources division. Ordinance 03031708 at 910. The 2009 ordinance incorporated these findings and cited additional studies and maps by Perkins Geosciences as the scientific basis for addressing the Board's final decision and order. Finally, as the Board recognized, these studies and reports discuss in part the specific value at issue here, the importance of vegetation in the river environment "especially in regards to its significant role in erosion control bank stabilization bank protection and bank accretion." 1 AR at 825.
We do not read Concerned Friends of Ferry County as imposing a duty on a county to describe each step of the deliberative process that links the science that it considers to the adopted policy or regulation. Nor does the relevant Department of Commerce regulation impose such a duty -- rather it requires that counties "address...on the record ... [t]he relevant sources of best scientific information included in the decision making." WAC 365-195.915(1)(b). Here because the County complied with this requirement we conclude that the Board correctly applied RCW 37.70A.172(1). [Emphasis added.]

So, as long as you cobble together a bibliography, you're home free.

News from the Deepwater Horizon Multidistrict Litigation

2012-01-26T21:52:00.000-08:00

Not Washington, but interesting:

BP tried and failed to get a piece of Transocean's $750M insurance coverage: Order(InsuranceActions).pdf Note the language from the Drilling Contract at p. 40:

Article 24 of the Drilling Contract allocates responsibility for pollution risks between the
“Contractor” (Transocean) and the “Company” (BP):
24.1 Contractor Responsibility
[Transocean] shall assume full responsibility for and shall protect, release, defend,indemnify, and hold [BP] and its joint owners harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or ontamination, including control and removal thereof, originating on or above the surface of the land or water, from spills, leaks, or discharges of fuels . . . or any other liquid or solid whatsoever in possession and control of [Transocean] and without regard to negligence of any party or parties . . . . [Emphasis added.]
* * *
24.2 Company Responsibility
[BP] shall assume full responsibility for and shall protect, release, defend, indemnify, and hold [Transocean] harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or contamination, including control and removal thereof, arising out of or connected with operations under this contract
hereunder and not assumed by [Transocean] in Article 24.1 above, without regard for negligence of any party or parties . . . .
Rec. Doc. 3211-6, at 11-12.

There are cross motions for partial summary judgment (essentially re liability) betwixt BR and Transocean awaiting decision: MinuteEntry.pdf (p.3)

The Court heard oral argument on Transocean’s Motion for Partial Summary Judgment against BP to Enforce BP’s Contractual Obligations (Rec. Doc. 4477) and BP’s Cross-Motion for Summary Judgment against Transocean (Rec. Doc. 4827). John Elsely argued on behalf of Transocean. Andy Langan argued on behalf BP. Steve O’Rourke argued on behalf of the United States. The Motions (Rec. Docs. 4477 and 4827) were taken UNDER ADVISEMENT.

According to news reports, BP hopes to evade the Drilling Contract language by claiming "gross negligence" on the part of Transocean. Good luck with that. Article 24 (supra) says "any loss .... " Should have a decision soon. The liability trial is set to start on February 27, with damages to be tried in July. OilSpill/Orders/PTO32.pdf

BP is represented by Kirkland and Ellis. Transocean went with a Texas firm, Royston Rayzor. Heavy hitters, to say the least.

Court lifts stay on Yucca Mountain case

2010-12-11T08:27:00.000-08:00

Annette Cary, writing in the News Tribune reports that, in my paraphrase, the US Court of Appeals for the DC Circuit has lost patience with the NRC commissioners playing politics with the Yucca Mountain issue.

Attorney General's Opinion on Exempt Wells

2009-09-24T11:02:00.000-07:00

The Attorney General's opinion concerning exempt wells is now online

Exempt Wells: Attorney General Weighs In

2009-09-23T12:41:00.000-07:00

David Lester, writing in the Yakima Herald-Republic reports on the Attorney General's opinion on Ecology's authority to restrict new exempt wells.

YAKIMA, Wash. -- The Washington Department of Ecology has legal authority to forbid new water wells, including the small, individual wells being tapped for new homes in Kittitas County, concludes an opinion from the state Office of the Attorney General.
In a 16-page opinion released Tuesday, the attorney general provided the state agency some legal backing in its efforts to regulate groundwater but also indicated there are limits.
The attorney general said Ecology can't rely on negotiated agreements with counties to reduce the amount of water that can be drawn from such wells. Doing so, the opinion said, would be a modification of state law.

The Sustainable Watershed Planning Act

2009-08-24T22:05:00.001-07:00

Prof. Campana, the Aquadoc at WaterWired, reports on a bill being worked up in the US House of Representatives that aims "To provide for the sustainable use of the Nation's water resources through the coordinated planning of water resources and water infrastructure, and for other purposes." It's early days yet, but this bears watching.

Report of Meeting on Emergency Well Closure Rule in Upper Kittitas County

2009-08-15T14:13:00.000-07:00

Dave Lester, writing in the YAKIMA HERALD-REPUBLIC, reports on a meeting held August 13th before the county commissioners. Ecology Director Manning attended and spoke. Apparently, the Attorney General will be rendering an opinion in September on the matter.

Deal On Hanford Cleanup Reached to Settle State Lawsuit

2009-08-12T09:35:00.000-07:00

Annette Cary writing in the News Tribune reports that a potential settlement has been reached in the 2008 lawsuit brought by the state to speed up the remediation of the underground storage tanks. Public comments will be taken before a consent decree in entered.

Tribes Not Liable Under CERCLA

2009-08-10T09:01:00.000-07:00

On June 17, 2009,the US District Court for the Eastern District of Washington ruled that tribes are not "persons" under CERCLA, 42 U.S.C. Section 9601(21). The Court therefore granted the Tribe's Rule 12(b)(6) motion against Teck Cominco's counterclaims in Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS, --- F.Supp.2d ----, 2009 WL 1796808 (E.D. Wash. June 19, 2009). Jessica Ferrell of Martin Law Group has a good discussion of the case. Links to documents in the case can be found at Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law.

Ecology Clarifies Its Emergency Closure Rule in Upper Kittitas County

2009-08-09T09:23:00.000-07:00

Ecology:

"The Department of Ecology (Ecology) has clarified its current groundwater closure in upper Kittitas County with the filing of an amended emergency groundwater rule.
"The amended rule makes it clear that people with vested building permit applications or issued building permits in the upper county as of July 16, 2009, are not subject to the groundwater closure and may use permit-exempt wells.
"A vested building permit application is one that has been completed and submitted to the county, and issuance of a permit is expected.
"The amended rule was signed Friday, July 31, 2009, and is effective for a maximum of 120 days. A map of the affected area is available on Ecology’s web site at: www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html. Under the amended rule, metering will be required for all uses of the groundwater exemption for residential purposes."

Point Wells: Asphalt Plant to Urban Center?

2009-07-28T09:00:00.000-07:00

Residential neighbors in Snohomish County and northern King County are concerned. Lynn Thompson, writing in the Seattle Times, describes the project and the concerns.

New Negotiations Set to Commence in Upper Kittitas County Exempt Well Controversy

2009-07-26T07:34:00.000-07:00

On Friday, July 24, the Department of Ecology announced it will be renewing talks with Kittitas County concerning its recently announced emergency rule. .

Quoting Ecology:

At the request of Gov. Chris Gregoire, Washington Ecology Director Jay Manning met with Kittitas County Commission Chair Alan Crankovich and, as a result, negotiations regarding an alternative groundwater management rule will recommence as early as next week.

Ecology's website has a page with some of the background on this issue.

Exempt Wells for Stock Watering

2009-07-25T06:29:00.000-07:00

Updating a previous entry on the Center for Environmental Law and Policy's (CELP) opposition to Easterday Ranches' proposed use of exempt groundwater for a new feedlot in Franklin County: On Jan. 8, 2009, Ecology denied CELP's petition for a declaratory order based on Easterday's right to decline to be a party to the proceeding. On June 11, Ecology announced that it had approved the transfer of a water right to 316 acre-feet of water to Easterday Ranches for use at the proposed feedlot. Easterday will apparently still need to draw on exempt groundwater to meet its needs for the 30,000 head facility.

A useful summary of this matter, including links to key documents, can be found on Ecology's website.

Ecology is continuing to ask for legislative clarification of the scope of the stockwatering exemption in the groundwater code. Quoting Ecology's FAQ on the Easterday feedlot:

Several bills to amend and clarify RCW 90.44.050 were introduced in the 2009 session of the Washington Legislature. All of these bills died in session. An interim working group comprised of legislators and representatives of the dairy and livestock industries and Ecology staff will convene later this year in an attempt to draft a statutory amendment to be considered during the 2010 session of the Legislature.

Oregon State Senator Considers Selling Columbia Water to California

2009-07-23T08:34:00.000-07:00

The East Oregonian reports that state Senator David Nelson made the suggestion while addressing the Rotary Club in Pendleton. Quoting the paper:

Nelson said he tends to look at Oregon's natural resources in trying to figure out how to pay for state programs. He said 90 percent of Oregon timber is off limits for harvesting, in explaining why he considers selling "surplus" Columbia River water.
In discussion with members of the audience, Nelson acknowledged more questions than answers on his idea. He said he knew of no precedents for such a sale of water. He mentioned that Oregon's ownership of the Columbia River extends to halfway across the channel. Among ways of getting water from the Columbia to the Southwest: a pipeline and/or rail cars.

Teck America, Inc. Enters Voluntary Cleanup Agreement For Black Sand Beach, Upper Columbia

2009-07-20T10:39:00.000-07:00

"The Washington Department of Ecology (Ecology) and Teck American Inc. (Teck) in Spokane this week signed a detailed voluntary agreement to remove slag from a beach area on the Upper Columbia River known as Black Sand Beach. The slag, which has the appearance of black sand, is an industrial byproduct from a metals smelting facility operated by Teck Metals Ltd. (formerly Teck Cominco) in Trail B.C."

Upper Kittitas County Closed to New Groundwater Withdrawals

2009-07-17T09:54:00.000-07:00

From Ecology

Emergency rule closes new groundwater withdrawals in upper Kittitas County YAKIMA – The Washington Department of Ecology (Ecology) will file an emergency rule that closes upper Kittitas County to all new groundwater withdrawals, the agency announced Thursday, July 16. After nearly two years of negotiations, Ecology was unable to gain a commitment from the Kittitas County Board of Commissioners that they were willing to move forward with a memorandum of agreement and alternative rule approach that would have limited the uncontrolled proliferation of so-called “exempt groundwater wells” in upper Kittitas County.

CELP Opposes Exempt Well Water for Feedlot in Franklin County

2008-12-28T07:24:00.000-08:00

The Center for Environmental Law and Policy (CELP) recently filed a Petition for Declaratory Order, seeking to have the Department of Ecology find that the stock-watering exemption of RCW 90.44.050 does not apply to feedlot operations. The petition takes direct aim at a 2005 Attorney General opinion to the contrary.

Private Dams Without Permits

2008-12-24T08:17:00.000-08:00

Shannon Dininny reports on a surprising number of private, nonpermitted dams in the state.

The Tri-City Herald Opines on the Hanford Lawsuit

2008-11-30T10:33:00.000-08:00

The Herald, the go-to source for coverage of doings at Hanford, thinks the recently filed lawsuit is "premature".

Here is the State's 11/25/08 press release on the suit.

State Sues Feds Over Hanford Delays

2008-11-26T10:29:00.000-08:00

The Tri-City Herald reports:

"The state of Washington will file a lawsuit Wednesday in U.S. District Court in an attempt to force the Department of Energy to meet new deadlines to empty radioactive waste from underground tanks and treat it."

Army Corps Changes Its Mind

2008-10-27T08:28:00.000-07:00

Michael Milstein reports on the Army Corps' withdrawal of a permit for a commercial dock on the Columbia River after the Port of Arlington, Oregon, completes 70% of the the structure, because the site is a usual and accustomed fishing station of the Umatillas.

The corps decision is especially troubling to Port officials because the corps sold the land for the dock to the Port in 1967 as work on John Day Dam wound down. The corps specified at the time that part of the site be used as a public port, said Tim Weatherell, chairman of the Port Commission. The Port contends the original fishing site protected by treaty is now submerged by the water behind the dam, about 300 feet away from the dock site, where tribal members now fish. But the corps ruled that doesn't matter. "The fact that the present location of tribal fishing has shifted with the shoreline and is not precisely where fishing took place in 1855 does not negate its qualifications as a usual and accustomed fishing station," the corps wrote.

Lawsuit Filed to Block Gravel Mine on Maury Island

2008-09-11T10:40:00.000-07:00

The Seattle Times reports that a lawsuit has been filed in federal court to stop Glacier Northwest's mine on Maury Island in Puget Sound. Plaintiffs are People for Puget Sound, the Washington Environmental Council and Preserve Our Islands.

Hearing on Legacy Lots in Woods View Development, Kitsap County

2008-08-23T13:47:00.000-07:00

This coming Monday, 8/25/08, at their regular which begins at 7 pm, the Kitsap County Commissioners will hear an appeal of the Hearing Examiner's decision. Christopher Dunagan reports on the issues in the Kitsap Sun.

The meeting agenda is here (see page 6).

Hanford: Nuclear Regulatory Commission gives tepid approval to DOE work on the vitrification plant

2008-08-12T21:29:00.000-07:00

The indefatigable Annette Cary, writing in the Tri-City Herald, reports on the NRC's review of DOE's progress in getting the vit plant up and running. I hope Ms. Cary plans on writing a book about Hanford -- someday.

Growth Management Act and the Shoreline Management Act: An Important Land Use Decision From The State Supreme Court

2008-07-31T10:58:00.000-07:00

In a 5 to 4 decision issued today, the Washington Supreme Court held that critical shoreline areas in the state are now to be regulated under the rules and procedures of the Shoreline Management Act, not the Growth Management Act. The dissent argues that this is only to happen when the Department of Ecology approves new shoreline master plans.

This short, opaque opinion (10 pages for the majority and 5 for the dissent) is going to have wide-ranging effects.

Ecology and the Columbia-Snake River Irrigators Association Enter Into A Voluntary Regional Agreement

2008-07-29T23:26:00.000-07:00

Department of Ecology

"Ecology and the Columbia-Snake River Irrigators Association (CSRIA) have entered into a Voluntary Regional Agreement (VRA) as provided for in RCW 90.90.030. The purpose of this VRA is to provide new water for the issuance of drought permits to existing interruptible water rights holders and new water rights on the Columbia and Snake Rivers. This VRA provides that the issuance of these new water rights cannot reduce or negatively impact stream flows in the months of July and August (April through August for the Snake River). To meet this standard of protection, Ecology and CSRIA will pursue conservation, storage, acquisition and other opportunities to provide new water to offset new withdrawals during the summer months."

New Water Cop in Town

2008-07-25T19:40:00.000-07:00

The The Chronicle OnLine reports that Tom Perkow has been appointed by the Department of Ecology to oversee water use by rights holders in the Columbia River Basin. Tip to Mr. Perkow: check for under utilitization on certificates. Use it or lose it is still the law in this state.

"End is near[er] for Hanford's K East Basin"

2008-07-25T19:21:00.000-07:00

Annette Cary, writing in the TriCity Herald, reports on significant progress in remediating the highly radioactive K East Basin facility at Hanford. The K East Basin is very close to the Columbia River.

A Section of King County's Clearing and Grading Ordinance Struck Down by Court of Appeals

2008-07-24T10:39:00.000-07:00

In an opinion filed July 7, 2008, the Court of Appeals, Division 1, struck down part of King County's clearing and grading ordinance (KCC 16.82.150, Clearing standards for individual lots in the rural zone) because it imposes an in kind indirect "tax, fee, or charge" on development, in violation of state law (RCW 82.02.020).

Kevin Hanson of The Enumclaw Courier Herald writes on the political fall out of the decision and reports that Supervision Sims says the county will appeal the decision.

The Nisqually River Council

2008-07-23T12:49:00.000-07:00

Rob Carson has an interesting article on the Nisqually River Council, and its cooperative approach to regulation, in the TheNewsTribune.com. Admittedly, a special case, but interesting nonetheless.

Oregon Objects to Dam Plan

2008-07-23T09:02:00.000-07:00

The SeattlePI, via AP, reports that the State of Oregon has filed a "supplemental complaint" challenging the salmon protection provisions of the dam operating plan agreed to by the BPA and the Tribes(see entry for April 7 below). The article is sketchy on details.

Water Storage in The Yakima River Basin

2008-07-22T16:28:00.000-07:00

The Yakima Herald-Republic Online reports that public turn out was light at a Department of Ecology meeting to discuss Black Rock and other alternatives for water storage in the basin.

NOAA Has Released a Draft Environmental Impact Statement on the Makah's Request to Hunt Gray Whales; Public Meetings Announced

2008-05-09T16:29:00.000-07:00

"May 9, 2008: NOAA's Fisheries Service released a draft environmental impact statement (DEIS) and requested comments on the Makah Indian Tribe's February 2005 request to resume limited hunting of eastern north Pacific gray whales in the coastal portion of the Tribe's usual and accustomed fishing grounds, off the coast of Washington State, for ceremonial and subsistence purposes. The DEIS, prepared under the National Environmental Policy Act (NEPA), considers various alternatives to the tribe's proposed action."

Feds and Tribes Agree to Work Together on Columbia River Salmon Issues

2008-04-07T19:22:00.000-07:00

SalmonRecovery.gov

"April 7, 2008 – The federal action agencies (Bonneville Power Administration, the U.S. Army Corps of Engineers, and the Bureau of Reclamation) are proposing to enter into agreements with four tribes to provide 10-year mutual commitments for fish restoration, particularly for Columbia River Basin salmon and steelhead. BPA is seeking public comment on the proposal to enter into the agreements as negotiated, as well as on associated environmental effects. The action agencies believe the proposed agreements will enhance overall fish restoration efforts in the region, making mitigation for the hydro system significantly more effective through a common approach. The agreements build on the hydro, habitat and hatchery actions in NOAA Fisheries’ draft biological opinions for listed salmon and steelhead, providing additional actions, greater clarity regarding biological benefits, and secure funding. The agreements also provide substantial benefits for non-listed fish, such as lamprey. The agencies intend the agreements to signal a stronger partnership with the tribes, centered around the shared fish restoration goals and priorities included in the agreements. Comments will be accepted until close of business April 23, 2008. Comments may be submitted online at http://www.bpa.gov/comment/ , via e-mail to comment@bpa.gov. Other ways to comment are described in the letter to the region announcing public comment opportunity, link below. ..."

The Salem-News.com reports:

"Under these agreements, the federal agencies would make available approximately $900 million over 10 years to continue existing programs and to implement new priority fish projects with the tribes. Most of this money would be provided by BPA. The tribes commit to accomplishing biological objectives with the funds, linked to meeting the agencies' statutory requirements. These agreements would promote a collaborative relationship between the parties for 10 years. The parties agree that the federal government's requirements under the Endangered Species Act, Clean Water Act and Northwest Power Act are satisfied for the next 10 years and that they will work together to support these agreements in all appropriate venues. The agreements would specifically resolve, for these parties, ESA litigation pending before Judge James Redden of the U.S. District Court of Oregon."

Pipe Columbia River Water to the Colorado?

2008-04-02T09:00:00.000-07:00

Laura Dobbins of The Daily Independent of Ridgecrest, California reports on seven ideas for getting more water into the Colorado River basin. In a report paid for by the Southern Nevada Water Authority, and presented to Secretary of Interior Dirk Kempthorne and water managers from the 7 Western states that share the Colorado River, one idea particularly caught my attention:

Undersea pipeline - This would carry fresh water to Southern California from the Columbia River.

The Associated Press: 3 Accused of Shooting Whale Plead Guilty

2008-03-29T15:46:00.000-07:00

The Associated Press

Theron Parker, William Secor Sr. and Frankie Gonzales each admitted in U.S. District Court in Tacoma that they violated the Marine Mammal Protection Act, after prosecutors agreed they would not recommend jail time or seek to curtail the men's hunting rights. Sentencing was scheduled for June 6. Wayne Johnson and Andy Noel, the two leaders of the hunt, declined the plea deal and decided to take their cases to trial, scheduled for April 8.

Whaling Convention Act Charges Against Makah Five Dismissed For Vagueness; Other Charges Stand

2008-02-20T11:36:00.000-08:00

PAUL SHUKOVSKY, reports on the federal case against the Makah whalers in the Seattle PI

TACOMA -- A federal judge threw out half of the government's case Tuesday against five Makah tribal whalers accused of harpooning and killing a gray whale in September. The hunt underscored the frustration many members of the Northwest tribe feel over perceived bureaucratic impediments to their right to hunt whales on the Olympic Peninsula, as their ancestors have done for thousands of years.
[snip]
The five whalers had faced a three-count misdemeanor indictment, charged with violations of the Marine Mammal Protection Act and Whaling Convention Act, and conspiring to break those laws. But U.S. Magistrate Judge J. Kelley Arnold ruled Tuesday that the language of the Whaling Convention Act on criminal violations is too vague to apply. He dismissed those charges and part of the related conspiracy count. Arnold cited a previous decision by the 9th U.S. Circuit Court of Appeals that found that the Makah must seek a waiver under the Marine Mammal Protection Act in order to take whales. His ruling left intact the charges alleging violations of that law.

Very fair article by Mr. Shukovsky; read the whole thing.

Defendants in Makah Whaling Case Raise Treaty Defense

2008-02-14T10:10:00.000-08:00

Jim Casey of the Peninsula Daily News reports today that a motion to dismiss federal charges against the Makah Five will be heard beginning Tuesday in Federal District Court in Tacoma.

A pretrial hearing on motions to dismiss federal charges against five Makah whale hunters will proceed on Tuesday. Peninsula Daily News erroneously reported Sunday that the hearing had been postponed. A reporter mistook a motion signed by Assistant U.S. Attorney James Oesterle for one signed by U.S. Magistrate Judge J. Kelley Arnold. Arnold on Wednesday ordered the hearing to proceed as scheduled and set aside two days for it. The crux of the hearing will be a defense claim that the charges void the 1855 Treaty of Neah Bay, in which the government granted to the Makah the right to hunt and kill whales and seals.

[snip]

[Assistant Us Attorney] Oesterle and his boss, U.S. Attorney Jeffrey Sullivan, sought to postpone the hearing because multiple federal agencies were interested in the motion to dismiss the charges against Wayne Johnson, Andy Noel, Frankie Gonzales, Theron Parker and William Secor Sr.

"Washington Dept. of Ecology Asks FERC to Rescind Its First Hydrokinetic License"

2008-02-14T10:00:00.000-08:00

From the law firm Stoel Rives LLP comes this report on Ecology's petition to have FERC rescind the license for the Makah Bay wave-energy project based on technical violations of the Clean Water Act and Coastal Zone Management Act.

The Washington Department of Ecology ("Ecology") filed a petition on January 17, 2008 requesting that the Federal Energy Regulatory Commission ("FERC") rescind its first ever hydrokinetic license. Issues raised in Ecology's petition are not unique to Washington.

EPA Penalizes DOE and Contractor for Violations at Landfill on Hanford Site

2007-12-03T01:22:00.000-08:00

EPA Press Release

(Richland, Wash. – Nov. 20, 2007) The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Energy (DOE) have reached an agreement to address violations of the Hanford Federal Facility Agreement and Consent Order (commonly referred to as the Tri-Party Agreement or TPA). The violations by DOE and its contractor, Washington Closure Hanford, LLC (WCH), occurred at the Environmental Restoration Disposal Facility or ERDF landfill at the Hanford Superfund site, located in eastern Washington.

snip

The violations included failure to perform weekly inspections of the landfill’s leachate collection and removal system. Inspections are necessary to determine if the ERDF’s leachate collection and removal systems are properly functioning. In addition, DOE failed to comply with waste compaction testing requirements as outlined in the Waste Material Management Plan. “With this enforcement action we sent DOE a message that they and their contractors have taken to heart,” said EPA’s Miller, “they have made changes to ensure that these types of violations don’t occur again at ERDF.” Under the terms of the agreement, DOE, with its ERDF contractor WCH, will perform two Supplemental Environmental Projects (SEPs) which will directly benefit the Hanford environment, as well as pay a penalty amount of $285,000. “DOE and WCH’s willingness to implement these two important projects sends a very positive signal and will benefit the local community and the environment long after the projects are completed,” said EPA’s Miller.

snip

The ERDF landfill site serves as the primary repository for contaminated soils, debris and other hazardous and radioactive waste from cleanup operations across the site. ERDF is designed to meet stringent requirements for hazardous and radioactive waste landfills.

Kittitas County and Ecology to Enter into Talks on Exempt Wells: Aqua Permanente Petition Conditionally Denied

2007-11-10T13:32:00.000-08:00

Mike Johnston of the Daily Record reports in today's edition that the county commissioners have agreed by a 2-1 vote to enter into talks with the Department of Ecology concerning exempt wells in the county. Quoting from Mr. Johnston"s article:

"Commissioner Alan Crankovich, during the Friday meeting with Ecology Department officials, said the AIP [Agreement in Principle] only pertains to Upper County and doesn't commit the county to undertaking any land-use action -- it only lists the issues and topics the county and state will attempt to reach agreement on."
"[Derek] Sandison [of Ecology] said the AIP allows the DOE to conditionally deny a requested moratorium on more exempt wells sought by the citizens group Aqua Permanente because it allows the state to seek an alternative to a shutdown of well drilling. The moratorium can be reconsidered, he said, if agreements break down."

On its website, Ecology describes the agreement.

"To better understand water supplies in the region, Ecology has agreed to seek funding to study underground (groundwater) sources in those portions of the county not fully covered by current U.S. Geological Survey research. While studies are under way, the agreement provides that:
* A long-term water management program will be developed based on the results of the groundwater study.
* New interim water management measures will be developed including data collection, notice to prospective property buyers and developers regarding potential limitations to groundwater supplies, educational materials for existing well users, and standards governing the use of exempt wells in western Kittitas County.
* Ecology, Kittitas County and other water right holders will develop and implement a mitigation program allowing the purchase of water to offset the impacts of exempt wells."

Kittitas County Offers Compromise on Exempt-Well Moratorium

2007-11-04T08:10:00.000-08:00

Mike Johnston of the Daily Record reports on comments by Darryl Piercy, the county’s director of Community Development Services, concerning the Aqua Permanente demand for a moratorium on exempt wells in the county:

"Piercy said the county supports “reasonable measures” such as an interim state rule that would limit water withdrawals from each 20-acre, developed, rural site to 5,000 gallons per day with metering and monitoring of wells. He said the county is actively using a process to analyze cumulative impacts from water withdrawals from an area in its evaluation of specific rural developments. The county also has established a database of known well and water production data in the county, and this information is used to review the impact of new, rural developments. Piercy also said the county requires metering of well heads in certain cluster subdivisions. The ... county [also] wants to complete its portion of the Yakima Basin Watershed Plan that will address the growth of rural developments and supports a groundwater study in Upper County to assess the status of the aquifer there."

Kittitas County Exempt Well Petition

2007-10-23T08:09:00.000-07:00

The Department of Ecology has a webpage concerning the pending petition to place a moratorium on exempt water wells in Kittitas County. Included are links to the Petition itself and a letter supporting the Petition from the Center for Environmental Law and Policy.

Of particular note are the following observations from the Department itself:

"Even before receiving the petition, Ecology has cautioned county officials about the large number of wells being drilled and the rate at which new subdivisions are being approved in Kittitas County that rely on the exempt well provision. 'I am concerned that the current pattern of subdivision approvals and drilling exempt wells is not sustainable,' said Ecology director Jay Manning. 'However, I have made no decision on how to proceed and very much want to hear from Kittitas County residents before any decision is made.'"

State Supreme Court Strikes Down Bainbridge Island's Moratoria on Shoreline Development

2007-10-12T00:23:00.000-07:00

In an important decision that came down October 11th, a divided court found that the City of Bainbridge Island improperly invaded the state government's exclusive power to regulate shoreline development.

"J.M. JOHNSON, J. -- Today, we review the Bainbridge Island City (City) Council's adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City's moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly provides that shorelines are owned by the state, subject only to state regulation. The City is not authorized to adopt moratoria on shoreline development arising out of its police powers under article XI, section 11 of the Washington Constitution, which limits local government to regulation 'not in conflict with general laws.' Thus, we affirm both the trial court and the unanimous Court of Appeals decision invalidating the ordinances."

Public Comment Period Open on Ecology's Draft 2007 Columbia River Water Supply Inventory

2007-10-11T08:17:00.000-07:00

The Department of Ecology's Columbia River Basin Water Management Program's annual legislative report on the Columbia River water supply inventory is now available for public comment.

Comments will be accepted until November 5, 2007. More information about submitting comments and scheduled public meetings is available at this link.

Update: Kittitas County Group Petitions Ecology for Limits on Exempt Wells

2007-10-11T07:56:00.000-07:00

Ecology Announcement:

"The Department of Ecology will host two "listening sessions" for the general public on ground water management in Kittitas County on Oct. 24 and Oct. 25, 2007. Ecology has received a petition from water right holders in the county seeking a temporary moratorium on new ground water wells in Kittitas County. The petitioners are members of a group called Aqua Permanente who are concerned that rapid rural residential growth will impair senior water rights and stream flows in the Kittitas and Yakima valleys. Click on the link below for more information: http://www.ecy.wa.gov/news/2007news/2007-305.html"

Certain water wells in Washington are exempt from the requirement for a water right, among them domestic wells pumping less than 5000 gallons per day. Now a group in Kittitas County wants the Department of Ecology to promulgate a rule that would suspend this exemption. David Lester of the Yakima Herald-Republic has the story.

"The newly created group, calling itself Aqua Permanente, has petitioned the state Ecology Department for a rule that would prohibit the drilling of new wells until the impacts on existing water rights and streamflows are known."

"Makah tribal members indicted in whale hunt"

2007-10-06T11:50:00.000-07:00

From Vanessa Ho of the Seattle Post-Intelligencer

"'We sought out the harshest penalties we believe we could find,' said Assistant U.S. Attorney Jim Oesterle. 'We believe this is egregious conduct, ... but these are the only statutes available to us at this point.'"

Makah Kerfuffle

2007-09-16T08:45:00.000-07:00

Wayne Johnson, one of the men accused of illegally taking a gray whale in the Strait of Juan de Fuca, released this statement.

When the U.S. Coast Guard ordered us to drop our whaling weapons last Saturday, we were just moments away from killing a gray whale that would have fed our Makah people. The wounded whale was left to drift with our harpoons in it and a second whaling team that would have ended its misery was turned away at gunpoint. I probably shouldn't say anything about all this since it looks like I will be prosecuted in tribal court. But I'm proud of what we did. I'm only mad that we weren't allowed to finish the job and bring this whale to shore for our people.
We've been waiting eight years since our last whale hunt for the United States to hold up its end of our treaty that guarantees our right to hunt whales. They have yet to carry out the legal procedures they claim to need. I don't know if I had any faith in the process to begin with, but I certainly don't have any now. The Makah Tribe never conceded that our treaty rights were subject to all these conditions. We agreed to participate in the process only as a courtesy, not a legality. But years are going by. So many of our elders have passed on. And some of us need this whale meat in our freezers to get through the winter.
The whales we see out there all the time are robust and they are everywhere. Our tribe manages its natural resources very well. Our seafood is still healthy, our fish, our clams. We have an abundance of wildlife and we have good management in place. Our whale hunting is and will continue to be sustainable. We've had an International Whaling Commission quota of five whales a year in place every year since I helped bring home the whale in 1999. That's 40 whales we've been denied while the government drags its feet and makes excuses. Just like the 60 billion dollars courts say the government owes Indians today, the U.S. still does not keep its promises to Native people. If they don't want to uphold their part of the treaty, then give me back my land.
Some people are calling what I did an act of civil disobedience. I don't know much about that, but if civil is what the government is, then call my part savage disobedience. Eskimos did it when their whaling rights were challenged. Aleuts did it when their sealing rights were challenged. Tulalip, Puyallup, Nisqually, Muckleshoot and many other Indians did it when their fishing rights were challenged. Many of us whalers have been talking about this privately for a while. Even though our community didn't know until it happened, many share our frustrations and showed support. From the inside of the jail we could hear them honking for us as they drove by. I was willing to go to jail. I did it for my mom, who is approaching 80, and for my nephew who is 5. Instead of commodity surplus cheese and canned goods this winter, I want them to eat our healthy Native foods. I want them to eat whale.

The Seattle Times, which also published the statement, has more on the story.

What I believe to be the Tribe's official position is reflected in this Q&A from the whaling section of the Makah website.

Here is the official statement of the Makah Tribal Council.

The Makah Tribal Council denounces the actions of those who took it upon themselves to hunt a whale without the authority from the Makah Tribal Council or the Makah Whaling Commission. Their action was a blatant violation of our law and they will be prosecuted to the fullest extent of the law. We are cooperating with the National Marine Fisheries Service in their investigation of this incident and will continue to do so.
The individuals who took part in this act were arrested by Makah enforcement officers and booked in our detention facility. They were released only after meeting the bail requirements set by the court. They will stand trial in our court at a future date.
We had a meeting of the general council of the Makah Tribe to discuss this incident and the membership of the tribe supports our action. The tribe has demonstrated extraordinary patience in waiting for the legal process to be completed in order to receive our permit to conduct a whale hunt. We are a law-abiding people and we will not tolerate lawless conduct by any of our members. We hope the public does not permit the actions of five irresponsible persons to be used to harm the image of the entire Makah tribe.

Kittitas County's Growth Plan Struck Down

2007-08-27T12:44:00.000-07:00

Mike Johnston, senior writer for the Ellensburg Daily Record, reports that the Eastern Washington Growth Management Hearings Board has struck down Kittitas County's growth plan.

" The state hearings board invalidated two land-use planning decisions contained in the county’s 2006 comprehensive plan and declared a list of other planning elements as out of compliance with the state’s Growth Management Act. The three-member state board also said the county’s continued use of three-acre zoning outside designated growth areas harms the county’s agricultural and other open spaces by encouraging urban-type growth in predominately rural areas."

Mr. Johnston goes on to quote the attorney for pro-development interests:

Other interveners in support of the county’s plan, the Building Industry Association of Washington and the Central Washington Home Builders’ Association, indicated they were disappointed in the decision, but not surprised. Attorney Andrew Cook of Seattle, representing the two groups, said the state hearings board is “notoriously anti-growth and anti-development, and this decision confirms this.” “The growth board has become so anti-growth that we, basically, expect we’ll lose at this level and appeal the case to the courts,” Cook said. “It’s disheartening, however, to consistently have unelected growth board members overturn laws enacted by elected officials.” He said the Monday decision imposes “Western Washington development standards on Eastern Washington residents.”

As of today, the decision hasn't been been posted on the Board's decision website. Update: Mr. Johnston also published another article concerning this matter that includes additional details.

Ecology Wants Artificial Wetlands in the Basin Covered by Critical Area Ordinances

2007-08-23T17:06:00.000-07:00

Shirley Wentworth, writing in the The Othello Outlook -- "In the Heart of the Columbia Basin," reports that the Department of Ecology wants wetlands associated with water from irrigation covered by the local CAOs.

"In a July letter to Adams County Planning Director Loren Wiltse, Ecology officials said that wetlands created from activities associated with the Columbia Basin Project should be included in the critical areas ordinance."

Interesting development, as the state continues to push regulatory responsibilities down to the counties. Hopefully, Ms. Wentworth and the Outlook will keep us updated.

The Bifurcation Works in the Columbia Basin Project

Alsea II: Judge Hogan Finds the NMFS Got It Right This Time

2007-08-23T00:48:00.000-07:00

In an August 14, 2007 decision on cross motions for summary judgment, Michael R. Hogan, United States District Judge for the District of Oregon, found that the National Marine Fisheries Service could properly included some, but wasn't required to include all, hatchery stocks in determining the Endangered Species Act status of Environmental Significant Units (ESUs)of Pacific salmon and steelhead.

A loss for the property-owner plaintiffs, this decision will certainly be appealed.

"Tribes win ruling on salmon"

2007-08-22T23:58:00.000-07:00

Robert McClure writing in the Seattle Post-Intelligencer reports on a decision in a major federal case concerning salmon and the problem of culverts.

"The state has breached its duties to Indian tribes under treaties dating to the 1850s by failing to maintain the road system, cutting off salmon from spawning grounds and robbing tribes of fish they were promised, a federal judge in Seattle ruled Wednesday. The ruling by U.S. District Court Judge Ricardo Martinez puts the state under the gun for tens of millions, if not hundreds of millions, of dollars' worth of repairs to culverts, the pipes that carry streams below roads."

Oregon Oasis Project Wrap Up from the NW Fishletter

2007-07-07T11:57:00.000-07:00

In a July 2 article in the Northwest Fishletter, a service of Energy NewsData, an intelligence source on energy policy, market news, and resource development for the western US and Canada, Bill Rudolph presents an extremely interesting report on the demise of the legislation and the views of several of the movers and shakers involved. I found particularly interesting the quotes from John DiLorenzo, an eminent Oregon attorney, concerning one of the reasons for the governor's threatened veto:

"According to testimony from Portland attorney John DiLorenzo, special counsel to the Umatilla Electric Coop and general counsel to the Oregon Oasis Project, the Governor's office told him that it could not support the bill because that would conflict with a 1992 agreement with other states that called for "no net loss of flows." DiLorenzo said an email from Mike Carrier, Kulongoski's natural resource policy advisor, informed him that any agreement, "no matter how minor," would trigger expensive litigation among the states. Later, DiLorenzo was given two documents that represented the agreement. The first was a December 1993 letter signed by all four Northwest governors suggesting that the states should defer to the NW Power Planning Council to propose a cogent policy for fish recovery that included federal agencies. The second document was a January 1994 letter from Oregon's two Council members asking that the state's Water Resources Commission adopt rules temporarily restricting withdrawals from the Columbia. But members, Ted Hallock and Angus Duncan, also said in the letter they weren't "proposing that the state maintain an indefinite moratorium on the issuance of new water rights in the Columbia-Snake system." "As best as we can tell," DiLorenzo said, "there is no memorialized 'deal' among the states, and if there is an oral understanding, it is a bad deal for Oregon given the fact that Washington taps approximately 32 percent of the total withdrawals, Idaho approximately 52 percent and Oregon withdraws only 11 percent."

It is a very interesting article, well worth the time of anyone interested in the mighty Columbia.

"Veto threat scuttles Oasis Bill"

2007-07-05T12:42:00.000-07:00

Capital Press Staff Writer MITCH LIES is reporting the Oasis bill is dead.

Under threat of a veto, the Oregon Senate this week buried the Oasis Project and with it hopes of Eastern Oregon farmers to revitalize a farm economy suffering for lack of water. The action by Senate President Peter Courtney to stall a bill authorizing summer irrigation water withdrawals from the Columbia River came in the wake of a veto letter sent by Gov. Ted Kulongoski to the Salem Democrat.

A Pro Oregon Oasis Project Editorial from the East Oregonian

2007-07-04T21:13:00.000-07:00

The Oregon Oasis bill appears to be stuck in the Oregon State Senate, with a threatened veto by the governor if it makes it out. The Klamath Basin Crisis group, a pro-irrigation group in Oregon, has reproduced an editorial from the East Oregonian on their website website.

"Assuming the bill makes it through the Senate with amendments, Gov. Ted Kulongoski has said he will veto the bill. We in Eastern Oregon think that would be a big mistake. We know the governor doesn't like this bill because it doesn't fit with his vision for aquifer recharge. We know he worries about the equity of diverting more water from the Columbia River at the risk of offending neighbors in Washington and Idaho, as well as the Confederated Tribes of the Umatilla Indian Reservation.
But Gov. Kulongoski hasn't done much to move this region in the direction of aquifer recharge. And while the state of Washington moves ahead with long-range planning to divert more water from the Columbia, we in Eastern Oregon can ill afford to worry about offending the fine residents of the Evergreen State."

Yakima Herald-Republic Not So Happy With the Feds' Efforts at Hanford

2007-06-27T15:36:00.000-07:00

The editorial board of the Yakima Herald-Republic yesterday unloaded on the US Department of Energy for cost escalations and delays associated with the clean up at the Hanford Site. Hard not to feel some sympathy for the editors' point of view. On the other hand, no one seems to know how to do a clean up of this magnitude and complexity. And all of the elaborate "decision-making process" employed to date does not seem to help when basic science and engineering questions remain unanswered. Here's a quote from the editorial showing what has the Herald-Republic upset:

As reported earlier this month in both this newspaper and the Tri-City Herald, the estimated cost has skyrocketed again -- this time from $26 billion to $44 billion for closing Hanford's underground tanks and treating their radioactive and hazardous chemical waste. There's more. * That amount does not include estimated contingency costs of as much as $18 billion -- bringing the potential cost to $62 billion -- if the project has more delays or other difficulties. And given the track record for almost two decades now, the chances of delay are near-certain unless there's a new culture of action we're not seeing so far. The $44 billion cost would cover emptying and closing the 177 underground tanks at the Hanford nuclear reservation and treating the 53 million gallons of waste they hold. The new numbers project that treatment of the waste and closure of the tanks would be completed in 2042, rather than 2028 as is required by the 1989 Tri-Party Agreement signed by the state and federal governments to establish (cue the cynical cackle) cleanup deadlines.

I wonder if Billy Clapp saw this coming?

2007-06-24T10:58:00.000-07:00

Billy Clapp was an Ephrata lawyer and, along with Rufus Woods, one of the driving forces behind the making of the Grand Coulee Dam. His hopes for industrial development in his region were disappointed when the Feds established the BPA to export the power out of the immediate area at postage-stamp rates, i.e., the power from the dam cost the same in Seattle as it did in Ephrata.

In today's Columbia Basin Herald, David Cole reports this from a meeting of the Ephrata City Council with Grant County Public Utility District representatives:

"The PUD is working on three substation projects in 2007, in the north and west sections of Quincy for Yahoo! Inc. and Microsoft Corp., and in Moses Lake for REC Silicon."

Billy Clapp Lake

Oregon Oasis Bill Passed in State House: Update -- Governor Threatens Veto

2007-06-22T07:28:00.000-07:00

The Oregonian reports that

"Governor Ted Kulongoski threatened Friday to veto a bill that would allow eastern Oregon to draw more water from the Columbia River. "Kulongoski's note to Senate President Peter Courtney -- one of only a few veto threats issued session -- called House Bill 3525 'a gross violation' of an obligation to Oregon's neighboring states to not reduce river flows. "Withdrawing the water, he said, could 'trigger lawsuits under the federal endangered species act' and overturn 'over 15 years of protection of listed salmon and steelhead stocks' in the river."

OregonLive.com: Politics Updates

"The Oregon House Thursday night approved a high priority measure for rural eastern Oregon that would allow the diversion of an additional 500,000 acre feet of water from the Columbia River during the summer irrigation season. Known as the Oregon Oasis Project, the measure, House Bill 3525, would bypass a rule adopted by the state in the 1990s that limits new diversions of Columbia water between April and September to ensure adequate water levels for endangered salmon and other fish."

"State, feds enter negotiations over Hanford cleanup"

2007-05-30T16:32:00.000-07:00

KOMO-TV - Seattle, Washington

"RICHLAND, Wash. (AP) - Federal and state officials entered formal negotiations Wednesday over long-stalled projects to clean up the nation's most contaminated nuclear site, including an over-budget plant to treat highly radioactive waste, and the retrieval of that waste from underground tanks."

Too Many LAMIRDS, Not Enough Farm Land in Thurston County?

2007-05-09T15:21:00.000-07:00

Keri Brenner, writing in the The Olympian, reports on the efforts by Thurston County to come into compliance with a 2005 decision by the Western Washington Growth Management Hearings Board that found the county's Comprehensive Plan created too many LAMIRDS (Limited Areas of More Intense Rural Development) and had established criteria for the designation of agricultural lands that did not protect enough resource lands.

While still appealing the decision, the county is proposing to down-zone about half of fifty current LAMIRDs to allow only one home per five acres. Quoting Ms. Brenner's article:

Under the first of the two county proposals, about 12,000 acres of high-density-pockets in the county would be “down-zoned” to 1 unit per 5 acres. The 12,000 acres represent about half of a total 21,000 acres now zoned at densities of 1 or 2 units per acre or 1 unit per 2 acres.

Zoning Issues in Kittitas County

2007-05-07T19:48:00.000-07:00

Although, according to Darryl Piercy, director of the county Community Development Services Department, over 96% of Kittitas County is zoned to require 20 acres or more for a home to be built, litigation and controversy is accompanying the county's efforts to allow land outside of urban areas to be zoned to allow one home on three acres. Opponents, including Futurewise, are insisting on at least five acres per home in the area now zoned for three acres. Read all about it in an article by Mike Johnston, senior writer for the Daily Record.

Ninth Circuit Affirms District Court's Rejection of NOAA Fisheries 2004 Biological Opinion

2007-04-11T16:02:00.000-07:00

Ninth Circuit Opinion

In the latest decision from the US Court of Appeals for the Ninth Circuit in the ongoing salmon wars, the Court affirmed District Judge Redden's holding below that there were several structural flaws with the 2004 Biological Opinion’s jeopardy analysis, as well as defects in the Biological Opinion's analysis of impacts on critical habitat, and thus it does not not meet the mandates the Endangered Species Act (ESA). At issue here are the operations of the Federal Columbia River Power System (FCRPS), particularly the lower Snake River dams.

II
After a careful review of the record, we conclude that the district court correctly determined that the jeopardy analysis of the 2004 BiOp contained structural flaws that rendered it incompatible with the ESA.
A
[1] The district court properly held that NMFS may not use a hypothetical “reference operation” in its jeopardy analysis to exclude from the proposed action’s impacts the effects of related operations NMFS deems “nondiscretionary.” NMFS admits that it chose the reference operation approach in order to avoid “trying to precisely determine the extent of the Action Agencies’ discretionary operation.” However, ESA does not permit agencies to ignore potential jeopardy risks by labeling parts of an action nondiscretionary. ESA’s section 7 requirements “apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR § 402.03. We cannot approve NMFS’s interpretation of this rule as excluding from the agency action under review any portions of admittedly-discretionary actions that the agency deems nondiscretionary, since this approach conflicts with ESA’s basic mandate.

The Court goes on to find that "[NOAA Fisheries'] contention that competing mandates for flood control,irrigation, and power production create any immutable obligations that fall outside of agency discretion is not persuasive." [snip] "[NOAA Fisheries] may not avoid determining the limits of the action agencies’ discretion by using a reference operation to sweep so-called “nondiscretionary” operations into the environmental baseline, thereby excluding them from the requisite ESA jeopardy analysis."

As to the intertwined questions of survival and recovery (here particularly as these relate to Snake River fall Chinook salmon), the Court opines that

The question before us is not whether, on the merits,recovery risks in fact require a jeopardy finding here, but whether, as part of the consultation process, NMFS must conduct a full analysis of those risks and their impacts on the listed species’ continued existence. Although recovery impacts alone may not often prompt a jeopardy finding, NMFS’s analytical omission here may not be dismissed as harmless: the highly precarious status of the listed fishes at issue raises a substantial possibility that considering recovery impacts could change the jeopardy analysis. The only reasonable interpretation of the jeopardy regulation requires NMFS to consider recovery impacts as well as survival.(Footnote omited.)

The Court goes on, following the District Court's decision, to criticize NOAA's handling the the critical habitat question and, at least obliquely, its reliance on hatchery stocks. The second to last paragraph of the opinion merits attention.

Here, FCRPS operations have been the subject of perpetual litigation since the fishes in question were first listed in the early 1990s. The analytical approach of the 2004 BiOp, issued under court order after a remand in 2003, broke sharply from NMFS’s previous analyses in the 1995 and 2000 BiOps, and did so in ways that lacked any reasonable foundation in the ESA’s statutory mandates. We hold that on this record, requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible substantive restraint.17 The district court’s chosen remedy was “reasonably calculated to remedy an established wrong,” and was not an abuse of discretion. NRDC v. Sw. Marine, Inc., 236 F.3d 985, 1000 (9th Cir. 2000) (internal quotation marks omitted) (approving remedy to enforce compliance with CWA permit issued by agency, and finding no encroachment on agency’s authority).

Fans of perpetual litigation can feel secure. This decision flowed from a summary judgment motion on plaintiffs' Second Supplemental Complaint in Judge Redden's court. A Third Supplemental Complaint has been filed.

Hanford: Single-Shell Tank S-112 Emptied

2007-04-06T21:42:00.000-07:00

Tri-City Herald -- By Annette Cary

"Hanford workers have finished emptying radioactive waste from an underground tank that posed one of the greatest risks to the Columbia River, according to CH2M Hill Hanford Group. When work started to retrieve solid waste from Tank S-112 in fall 2003, it held 614,000 gallons. That's enough to fill a basketball court 25 feet deep or more than double the amount that was in all six of the other tanks that have been emptied to date. CH2M Hill believes it has removed 99.6 percent to 99.8 percent of the waste in Tank S-112. The legally binding Tri-Party Agreement requires at least 99 percent of waste to be retrieved or as much as can be retrieved with available technology."

GMA: When is Agricultural Land Not Agricultural Land?

2007-04-06T21:24:00.000-07:00

Yakima Herald Republic Online - By DAVID LESTER

"Yakima County and a rural property owner have won a third court decision in a longstanding dispute over changing farm land to a use that allows housing.
A Yakima County Superior Court judge ruled Thursday that the county acted properly when it approved a 2001 rezone for almost 1,100 acres on Naches-Wenas Road, northeast of Naches.
[snip]
"The case has followed a tortuous route with two visits to Superior Court, twice to the hearings board and once to the state Court of Appeals.
Each time, the courts found for the county in a rezone that will allow housing developments of 5-acre lots on land that has poor soil, no water right and hasn't produced a commercial crop."

Public Voices Raised on Plan to Recycle Nuclear Fuel at Hanford

2007-03-14T14:51:00.000-07:00

Tri-City Herald -- by ANNETTE CARY

"The Department of Energy is considering the Hanford nuclear reservation among other sites across the nation for a center to recycle used nuclear fuel, a reactor to burn the recycled fuel to reduce waste and produce electricity and a research center for the project.
About 300 people packed the hearing in Pasco, with crowd sentiment favoring those who spoke in favor of a new production mission for Hanford."
"DOE expects to make a decision on whether and how to proceed with the fuel recycling initiative by June 2008. The recycling facilities and reactor could be in full operation between 2020 and 2025.
An Oregon meeting has been added to the public hearing schedule. It will be held at 6 p.m. March 26 at the Best Western Hood River Inn in Hood River.
DOE also is accepting written comments. They may be sent to Timothy Frazier, GNEP PEIS Document Manager, Office of Nuclear Energy, Department of Energy, 1000 Independence Ave. SW, Washington, D.C. 20585-0119, or e-mailed to GNEP-PEIS@nuclear.energy.gov. Mark envelopes and e-mails as 'GNEP PEIS Comments.' "

Local Congressman Opposes LNG Terminal on Lower Columbia

2007-03-07T15:43:00.000-08:00

Kathie Durbin writing in The Columbian reports that

"U.S. Rep. Brian Baird announced this week he will oppose a plan to locate a liquefied natural gas terminal on the lower Columbia River. Baird's announcement came after he reviewed a long-awaited U.S. Coast Guard report describing the security measures that would be required to move LNG tankers safely over the Columbia River bar and upriver to a proposed terminal 40 miles east of Astoria. 'After reviewing the (report), I believe there is enough compelling evidence to oppose the proposed LNG project,' Baird said in a press release. 'While there may be local benefits to the project, including job creation and additional gas production, the overall negative impacts on the entire river system are too great for me to support.' Houston-based Northern Star Natural Gas has proposed to import natural gas from Russia, Australia and other countries, shipping the gas in superchilled liquid form in double-hulled tankers to a terminal on the lower Columbia. "

An environmental impact statement is expected soon.

Snohomish PUD Gets FERC Permits to Study Tidal-Power Generation in Puget Sound

2007-03-04T10:55:00.000-08:00

HeraldNet --By Lukas Velush

"The Snohomish County PUD learned [February 22nd] that it can begin studying the placement of hundreds of underwater turbines in Western Washington waters. The decision from federal energy regulators gives the utility three years to see if it makes sense to plant tidal flow turbines on the seabed at five different locations.
The study sites are Spieden and San Juan channels in the San Juan Islands, Guemes Channel near Anacortes, Agate Passage near Bainbridge Island and Rich Passage near Bremerton."

State Challenges Element of Kittitas County's Comprehensive Plan

2007-03-03T00:11:00.000-08:00

KVNEWS - By MIKE JOHNSTON

"A state agency overseeing the Growth Management Act [Department of Community, Trade & Economic Development] last week filed an appeal challenging Kittitas County's updated 2006 comprehensive land-use plan, claiming the county failed to designate minimum lot sizes in rural areas in a way that prevents rural sprawl by housing developments.
State and county officials on Thursday said they were confident the issues raised by the state can be resolved prior to both sides going to hearings before the Eastern Washington Growth Management Hearings Board, which received the appeal petition Feb. 21.
A major issue, according to the state, is the county's continued allowance of three-acre lot sizes on rural lands located outside areas that are targeted for urban-type growth. This fails to protect the rural character, the petition claims."

Legislature Moves to Block Large Gravel Mine

2007-02-16T16:44:00.000-08:00

VashonBeachComber

"With support from the Senate’s Democratic leadership, state Sen. Erik Poulsen (D-West Seattle) on Monday introduced three bills that could make Glacier Northwest’s massive expansion of its mine on Maury Island difficult to impossible. State Rep. Joe McDermott (D-West Seattle) said Monday he and Rep. Eileen Cody (D-West Seattle) are close to introducing the same bills in the House. All three bills, were they to pass, would place significant roadblocks in Glacier’s way.

Small Lots Platted Long Ago Pose Big Problem to Growth Management Act: Updated

2007-01-22T21:18:00.000-08:00

As reported by Christopher Dunagan of the kitsapsun.com, "State agencies will not adopt health regulations to artificially control growth in rural areas, according to Jim Bolger of the Kitsap County Department of Community Development."

The problem arose when a developer cobbled together many small lots, platted before the Growth Management Act, and, proposing to use new, high-tech septic systems that do away with leach fields, found a way to put 78 homes on 12 acres in an area now zoned for one house per five acres. But since the small lots were platted before the zoning, they are presumably grandfathered in. Big problem for low-growth supporters, neighbors, and traffic. There are many such small lots in Kitsap County (on the west side of Puget Sound), but previously the need for leach fields and traditional septic systems made them unbuildable. The Kitsap County Board of Commissioners has slapped on a moratorium, and scheduled a public hearing on the matter for February 12th in Port Orchard.

Opponents of these type of developments had hoped the state agencies would forbid the use of such systems in rural areas. Apparently not. Will the legislature act? If so, will its action survive a regulatory-takings challenge?

But is the right to develop these lots really vested? Not so clear, not so clear.

Updated: TransAlta Abandons Plans for Centralia Coal Mine

2007-01-18T05:26:00.000-08:00

A correction is in order. The Pit 7 Project that is being scaled back is a distinct project from the West Field project referred to in the SeattlePI article. Jonathan Smith of the ACE clarified the issue for me. The West Field is a separate project proposal that TransAlta is still considering. According to Mr. Smith: "The former Pit 7 project permit application has been revised, and now entails adding two railroad sidings along side the existing rail spur by which the Powder River Basin coal is and will continue to be delivered to the Centralia powerplant."

Original, uncorrected post: In an apparent reversal of its previously announced plans to open a new pit at its Centralia mine, TransAlta has significantly scaled back its operations, according to an announcement in the 1/18/07 Federal Register

"SUMMARY: The permit applicant, TransAlta Centralia Mining LLC (TCM) has greatly reduced the scope of its proposed coal mining project at Centralia, Washington. Therefore, the U.S. Army Corps of Engineers (Corps) is withdrawing its Notice of Intent to prepare an environmental impact statement (EIS).
FOR FURTHER INFORMATION CONTACT: Mr. Jonathan Smith at the U.S. Army Corps of Engineers, Seattle Regulatory Branch, 4735 E. Marginal Way South, Seattle, Washington 98134, (206) 764-6910, or e-mail Jonathan.Smith@nws02.usace.army.mil. Mr. Mark Cline, at the Washington Department of Ecology, 300 Desmond Drive, SE., Lacey, Washington 98503, or e-mail mcli461@ecy.wa.gov
SUPPLEMENTARY INFORMATION: The Corps and Washington State Department of Ecology (Ecology) published a notice of intent in the April 7, 2006, issue of the Federal Register (71 FR 17840) to prepare an EIS on TCM's proposed Pit 7 Mining Project. Since that time, TCM's proposed project has evolved from a coal mining project, affecting over 100 acres of wetlands and streams, to a railroad upgrade project for importing coal from existing, already permitted mines in Montana and Wyoming. This modified proposal appears likely to affect less than three acres of wetlands. Therefore, the Corps and Ecology plan to conduct an environmental assessment of the proposed rail upgrade project during the first half of year 2007. An EIS would be prepared only if results of the environmental assessment indicate potentially significant, adverse environmental impacts."

Dead Animals and Other Doings at Hanford

2007-01-16T10:08:00.000-08:00

Under an AP byline, the Tri-City Herald reports that

"Some compaction records for the low-level radioactive waste dump at the Hanford nuclear reservation have been found to be bogus, officials said, raising questions about the risk of future pollution. Patrick L. Pettiette, president of the Washington Closure Hanford LLC, said the contractor was told that falsified records were found Friday in a routine audit by S.M. Stoller Corp. of Broomfield, Colo., the subcontractor for operation of the Environmental Restoration Disposal Facility. "This has everyone's attention," Pettiette told the Tri-City Herald. "All the focus is on getting to the bottom of it."

Who is Washington Closure Hanford? Quoting its website:

"The U.S. Department of Energy selected Washington Closure Hanford (WCH) on March 23, 2005, to manage the River Corridor Closure Project at the 586-square-mile Hanford Site in southeastern Washington state. Washington Closure Hanford is a limited liability company owned by Washington Group International, Bechtel National and CH2M HILL. WCH has the single purpose of safely cleaning up and closing the Hanford river corridor."

Oh, the dead animals? In an article by the indefatigable Annette Cary of the Tri-City Herald, and published in the SeattlePI, we find out that

Hanford workers have removed 40,000 tons of carcasses, manure and other waste from burial trenches at the former experimental animal farms at Hanford. That included a railroad tanker car packed with animal carcasses, then buried, said Mark Buckmaster, Washington Closure Hanford remediation manager, during a presentation to a Hanford Advisory Board committee last week.

Read the whole article to find out about the alligators.

Ecology Director Hints at Change in Washington's Prior Appropriation Doctrine

2007-01-12T18:48:00.000-08:00

According to an article by Andy Porter of the Walla Walla Union-Bulletin, a change in Washington's prior appropriation doctrine concerning relinquishment may be in the offing.

Manning said if local efforts continue to work, it could lead to a relaxation of the rules that say a water right holder may be forced to relinquish a right if the water isn't fully used. But, Manning warned, ``if we're going to solve the relinquishment issue, we've got to solve the in-stream flow issues.'' The problem is also not something Manning himself can change, Ecology spokeswoman Joye Redfield said today. ``The relinquishment law is a law and it has to be changed through the Legislature,'' she said.

However, given the proven ability of Gov. Gregoire and Director Manning to work with the legislature, this is a matter that bears watching. The issue came up last session during the negotiations that led to the Columbia River Water Management Act, but was sidestepped as a probably deal killer.

Ecology to Post Water Right Decisions Online

2007-01-09T18:20:00.000-08:00

Almost missed this one, announced January 2d --

"Beginning January 01, 2007, Ecology's Water Resources Program will begin posting its draft and final water right decisions. Ecology will be providing the public with an opportunity to view and comment on draft Water Right and Water Right Change Reports of Examination, and to view the final Water Right and Water Right Change Reports of Examination.
Draft reports of examination relating to applications for permits to appropriate surface water or ground water, for reservoir permits, or for changes of surface water or ground water rights will be posted to Ecology's internet site. Applications for seasonal changes to water rights and temporary and preliminary permits will generally not be posted for comment prior to a final decision.
Final reports of examination will be normally posted within 10 working days of signature by the section manager.
Water Right and Water Right Change Reports of Examination - View Draft and Final Reports of Examination as they are made available
Water Right Administration Policy POL-1005 Internet Posting of Reports of Examination - View the Policy
For future reference there are links to the ROE page on the:
Water Resources homepage - http://www.ecy.wa.gov/programs/wr/wrhome.html and on the Water Rights homepage - http://www.ecy.wa.gov/programs/wr/rights/water-right-home.html"

Notice of Meeting of Hanford Advisory Board

2007-01-09T14:13:00.000-08:00

FR Doc E7-87: "[Federal Register: January 9, 2007 (Volume 72, Number 5)] [Notices] [Page 964] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr09ja07-42]
----------------------------------------------------------------------- DEPARTMENT OF ENERGY
Environmental Management Site-Specific Advisory Board, Hanford
AGENCY: Department of Energy.
ACTION: Notice of open meeting.
-----------------------------------------------------------------------
SUMMARY: This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the Federal Register.
DATES: Thursday, February 1, 2007, 9 a.m.-5 p.m.; Friday, February 2, 2007, 8:30 a.m.-4 p.m.
ADDRESSES: Red Lion Hanford House, 802 George Washington Way,Richland, Washington.
FOR FURTHER INFORMATION CONTACT: Erik Olds, Federal Coordinator, Department of Energy Richland Operations Office, 2440 Stevens Drive, P.O. Box 450, H6-60, Richland, WA 99352; Phone: (509) 376-8656; Fax: (509) 376-1214.
SUPPLEMENTARY INFORMATION: Purpose of the Board: The purpose of the Board is to make recommendations to DOE in the areas of environmental restoration, waste management, and related activities.
Tentative Agenda
Columbia River Toxic Program
Budgets and Contracts Committee advice on Hanford's Request for Proposals
Public Involvement and Tank Waste Committees update from the workgroup covering the Tank Closure and Waste Management
Hanford Advisory Board Charter Changes
Change of Advisory Board Chair
Advice from the Health, Safety and Environmental Protection Committee on worker compensation
Advice from the Public Involvement Committee on the 2009 budget involvement process
Agency Updates
Committee Updates
Public Participation: The meeting is open to the public. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Erik Olds' office at the address or telephone number listed above. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comment will be provided a maximum of five minutes to present their comments.
Minutes: The minutes of this meeting will be available for public review and copying at the U.S. Department of Energy's Freedom of Information Public Reading Room, 1E-190, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585 between 9 a.m. and 4 p.m., Monday-Friday, except Federal holidays. Minutes will also be available by writing to Erik Olds' office at the address or telephone number listed above.
Issued at Washington, DC, on January 4, 2007. Rachel M. Samuel, Deputy Advisory Committee Management Officer. [FR Doc. E7-87 Filed 1-8-07; 8:45 am] BILLING CODE 6450-01-P

Scoping the Yakima Project for New Storage Opportunities

2007-01-06T10:09:00.000-08:00

"The Bureau of Reclamation and the Washington Department of Ecology will host two open houses and public scoping meetings in Yakima, Washington on the Yakima River Basin Water Storage Feasibility Study. The two scoping meetings will be preceded by informal open houses and will be held at the Yakima Convention Center, 10 North 8th Street, on January 23, 2007. Open Houses: 1:00 to 2:00 p.m.; and 6:00 to 7:00 p.m. Scoping Meetings: 2:00 to 4:00 p.m.; and 7:00 to 9:00 p.m. In addition to comments received at the scoping meeting, written comments will be accepted through January 31, 2007, and may be sent to: Bureau of Reclamation, attn: David Kaumheimer, 1917 Marsh Road, Yakima WA 98901-2058, or fax: (509) 454-5650. The meeting facilities are physically accessible to people with disabilities. Requests for sign language interpretation for the hearing impaired should be submitted to David Kaumheimer at (509) 575-5848, extension 232, by January 8, 2007."

More information is available at the Bureau's website. The Yakima Project, begun in earnest in the first decade of the last century, supplies irrigation water to 464,000 acres in south central Washington. This latest proposal for development is controversial due to the congressionally-mandated emphasis on the Black Rock dam.

The Storage Study was authorized by Congress in 2003. In accordance with the authorization, the initial emphasis of the study is to accumulate data and information on the Black Rock option. Concentrating initial efforts on this option will provide data and information comparable to the level of data of the other options. Two considerations will be studied and evaluated in the Storage Study:
1. diversion of Columbia River water to the proposed Black Rock project to be used as an "exchange supply" for irrigation entities in the lower Yakima basin, and
2. creation of additional storage within the Yakima River basin.
The study area is in south-central Washington. The Yakima basin covers about 6,100 square miles, including Kittitas County and portions of Yakima, Benton, and Klickitat Counties. When the feasibility investigation of importing Columbia River water to the Yakima Project users is considered, the Columbia River will be included in the location.

The Yakima basin is a major agricultural area of national significance. Quoting from the Bureau's Project webpage:

The record of crop production on the Yakima Project is outstanding. Nearly one-half million acres of sage-covered lands have been transformed into one of the richest agricultural areas in the Nation. Yakima County ranks first among all counties of the United States in the production of apples, mint, and hops. Principal crops are fruit, vegetables, forage, hops, and mint.

The (Big) Business of Wind Farms

2007-01-02T23:36:00.000-08:00

Don Jenkins of the Longview Daily News reports on the development of a 204 megawatt wind farm in Klickitat County. Planned by local PUDs and power cooperatives, the farm will be owned by an investment group formed by Prudential Insurance and Lehman Brothers. Quoting Mr. Jenkins:

"The investors aren't interested in wind turbines, but they are interested in federal tax deductions available to private investors in environmentally friendly wind farms, said Alan Dashen, a financial consultant hired by the PUD to arrange the deal.[snip]
In a deal expected to close this week, investors will pay $173.5 million for the wind farm. The utilities will advance $187.7 million for 10 years' worth of power."

The deal also allows the utilities to meet the demands of the recently passed Initiative 937, which requires larger utilities in the state to meet certain targets for use of renewable energy resources.

Will "transfer of development rights" be the vehicle of compromise for foes and friends of Washington's land-use regulations?

2007-01-02T19:17:00.000-08:00

In an interesting article by Eric Pryne in the Seattle Times, one possible avenue of compromise between the friends and foes of recently defeated land-rights initiative I-933 is discussed -- TDRs, that is transferable development rights. Quoting the article:

Here's how TDR programs work: Governments establish "sending sites" — lands they want to protect — and "receiving sites" — lands where development is encouraged. If they choose, owners of sending sites can then sell some or all of their legal right to develop their property to owners of receiving sites, who in turn can use that acquired right to develop their property more densely than zoning otherwise allows. Everything is voluntary.

The article quotes rural property interests as thinking this sort of approach doesn't go far enough to lessen the regulatory burden. But the effort to find some sort of compromise is afoot. Gov. Gregoire has tasked the William D. Ruckelshaus Center to convene the various interest groups to explore possible avenues of compromise. And Mr. Ruckelshaus can be a very persuasive gentleman. The Center is to report back to the governor by October.

Grant County PUD Gears Up for the Coming of Microsoft and Yahoo Server Farms

2006-12-30T09:44:00.000-08:00

Grant County Public Utility District, in central Washington, has adopted a $469.8M budget for 2007, a 14% increase over 2006. As reported by David Cole of the Columbia Basin Herald, the budget addresses the increase in demand due to the coming of Microsoft and Yahoo to this rural county, as well as the expenses involved with the FERC relicensing of its Priest Rapids Dam.

"• The district has to respond to increasing growth and customer demand, including expansion of the electric system for businesses locating to Grant County like Microsoft Corp. and Yahoo!, [PUD spokeswoman]Bjork said.
• The PUD anticipates receiving its new operating license in 2007 for the Priest Rapids Hydroelectric Project from the Federal Energy Regulatory Commission. The PUD expects to meet additional undetermined FERC requirements accompanying the license. The budget reflects projected costs to meet those requirements, Bjork said."

Grant Co. PUD owns and operates two dams on the Columbia River, Priest Rapids and Wanapum. Wanapum is currently undergoing a major turbine upgrade.

"He'll have days where he's in trouble, but he won't have any trouble."

2006-12-28T14:08:00.000-08:00

Columbia Basin Herald -- By Matthew Weaver

"[Dick] Erickson retires [as Manager of the East Columbia Basin Irrigation District] in May 2007. In the meantime, he is working with his replacement, the irrigation district's engineer, Craig Simpson, who recently assumed the title of senior assistant manager and deputy secretary for the interim. Ian Eccles assumes the position of district engineer.'

My headline, a quote from the article, is what Mr. Erickson said about what his replacement can look forward to. And it is my own hope for myself for the New Year. Happy New Year to all.

SCOTUSblog On the Coming Wave of Environmental Cases

2006-12-26T22:18:00.000-08:00

Marty Lederman at SCOTUSblog has a roundup of environmental law cases at the US Supreme Court.

WA Ecology unhappy with EPA's "relaxed toxics reporting"

2006-12-26T06:49:00.001-08:00

"FOR IMMEDIATE RELEASE - Dec. 22, 2006 06-268 Relaxed federal toxics reporting affects Washington residents OLYMPIA - The head of Washington Department of Ecology (Ecology) expressed disappointment today that the federal Environmental Protection Agency (EPA) has relaxed pollution-reporting rules requiring industries to report the toxic substances they create. "This change means that the people of Washington state will lose valuable information regarding up to 1.5 million pounds of toxic releases annually in and near communities throughout the state," said Ecology Director Jay Manning. "Additionally, we could lose all release data for eight of the top 40 facilities with the highest relative risk ranking, based on 2002 information." Manning added: "The Toxics Release Inventory is part of the federal Community Right to Know Act, and the new, relaxed EPA reporting requirement denies our citizens information they have a right to. This federal decision not only reduces our ability to protect public health and the environment, but it also threatens the public's trust in their government." On Monday, EPA adjusted pollution-reporting requirements for manufacturers that it keeps in an information database called the federal Toxics Release Inventory (TRI). Federal law requires that industrial facilities and manufacturing plants report specific toxic chemicals discharged based on their use of the chemical, even if they are not discharged in toxic amounts at any one time. The changes, issued in the name of reducing burden to industry, won't result in a significant reduction in the time it takes industry to meet the requirements, Manning said. However, it will deprive the public of information they have been entitled to since 1987. The new federal requirement allows more businesses to use a short form to report the name of the chemical used or released. Previously, these businesses were required to report detailed information about how a chemical was used, released, transferred, burned for energy recovery, recycled or disposed off site. The TRI tracks 650 chemicals that are in commercial use. Manning said the current TRI reporting requirements have worked well. They have helped regulators keep track of releases of pollution and helped agencies such as Ecology focus resources on areas where pollution-prevention efforts can pay off. In fact, many businesses use the inventory as an opportunity to show how little pollution they release. The inventory provides critical information to Washington residents and to the news media regarding toxics produced in their communities. "To weaken these regulations is a step backwards and a disservice to the public and increases the risk toxic chemicals pose to human and environmental health," he said. Ecology is particularly concerned about certain long-lasting, toxic substances, such as mercury , that build up in the tissues of humans and animals. Statewide mercury releases dropped 11 percent from 2001 to 2002, a trend Ecology wants to see continue, Manning added. Ecology is working to reduce toxic chemicals in Washington. There are about 80,000 chemicals in use in the U.S. today and while many of them have added to society's quality of life, the health effects from the thousands of these chemicals, particularly on young children, is not known. # # # Media contact: Sandy Howard, public information manager, 360-407-6408"

Here is the link to EPA's explanation of the new rule.

First Circuit Case on RCRA Citizen Suits: Possible Relevance to the Columbia?

2006-12-23T13:12:00.000-08:00

MAINE PEOPLE'S ALLIANCE AND NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs, Appellees, v. MALLINCKRODT, INC., Defendant, Appellant.

In this 12/22/06 opinion, the U.S. Court of Appeals for the 1st Circuit upheld a district court decision ordering a risk assessment of mercury contamination in the Penobscot River. (HT to Howard Bashman at How Appealing)

From 1967 to 1982, Mallinckrodt, then called International Minerals and Chemicals Corporation, owned and operated a chlor-alkali plant (the Plant) situated on the banks of the Penobscot River in Orrington, Maine. Thereafter, the Plant continued operations under other owners, namely, Hanlin Group, Inc. and HoltraChem Manufacturing Co.,2 until it closed in 2000. During the period of its operation, the Plant deposited tons of mercury laden waste into the Penobscot River.[p.3]

To evaluate the feasibility of remediation

[A] 1993 consent decree contemplated a tripartite process comprising site investigation, evaluation of possible corrective measures, and remediation. In line with the first phase of this process, Mallinckrodt compiled and submitted a site investigation report. In March of 1997, EPA and MDEP, acting in concert, issued a draft notice of disapproval. Mallinckrodt countered with a supplemental site investigation report but, in 2000, EPA and MDEP again disapproved. Among other things, the regulators instructed Mallinckrodt to study the effects of mercury downriver from the Plant. Within a matter of months, Mallinckrodt commissioned a study aimed at examining downriver mercury contamination. It conducted a second downriver study during the summer of 2001. Notwithstanding the submission of these studies, however, the district court supportably found that Mallinckrodt made only minimal efforts to pursue the designated line of inquiry and that the decision to forgo more vigorous efforts was deliberate. [cit. omitted] In the midst of this sparring, two environmental groups — the National Resources Defense Council and the Maine People's Alliance — joined forces to commence a citizen suit under RCRA § 7002(a)(1)(B). The plaintiffs alleged that mercury contamination downriver from the Plant "may present an imminent and substantial endangerment to health or the environment." Acknowledging the possibility that remediation might eventually prove to be either unnecessary or infeasible, their principal prayer for relief was that Mallinckrodt be ordered to fund an "independent, comprehensive, scientific study to determine the precise nature and extent of the endangerment."[p. 4]
This case revolves around the meaning and purport of RCRA § 7002(a)(1)(B), a statute that ... allows citizens to sue persons or firms whose handling of solid or hazardous waste "may present an imminent and substantial endangerment to health or the environment." Id. The district court read this language as meaning that such suits could be brought to alleviate reasonable medical or scientific concerns. Me. People's Alliance, 211 F. Supp. 2d [237] at 252. Mallinckrodt urges a more circumscribed interpretation. [p.19]

The Court, at footnote 11, does remind us, however:

that a private party can[not]interfere with an EPA prosecution or disturb the finality of a negotiated settlement. ... See Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1323-25 (7th Cir. 1992).

Has the Teck Cominco-EPA agreement with respect to Lake Roosevelt foreclosed the possibility of a similar citzen suit for mercury contamination in the Columbia? This agreement is highly unusual in that it is a contract between a foreign company and a US government agency. Is it a "negotiated settlement"?

Governor Worried about Hanford

2006-12-23T07:17:00.000-08:00

Tri-City Herald -- By Annette Cary

"In addition, Gregoire is proposing $1.3 million for additional support of the state Attorney General's Office to make sure it has the money it needs to enforce Hanford cleanup and address other legal issues affecting the nuclear reservation. 'I'm worried, candidly,' she said about Hanford cleanup and litigation in a telephone conversation with the Herald's editorial board Thursday. 'I'm not a big believer in suing. But legal work needs to be done.'"

CAO Decision from the Washington State Supreme Court

2006-12-21T14:32:00.000-08:00

1000 Friends of Washington v. McFarland

"Today, we are asked to decide whether county ordinances enacted under detailed procedures established by the state Growth Management Act (GMA), chapter 36.70A RCW, to designate and protect critical areas are subject to a veto by a local vote. More than a decade ago, this court substantially answered that question. Brisbane, 125 Wn.2d 345. There, we concluded that GMA ordinances, at least those relating to critical areas, are not subject to referenda. We reached that decision on several grounds, including the fact that the county was required by the State to designate and protect critical areas and that the State had established elaborate procedures for public participation that were inconsistent with local up and down votes. The petitioners ask us to revisit and overrule Brisbane. We decline to do so.

HT to Stefan at Sound Politics, who does not concur.

Don't miss Justice James M. Johnson's dissent:

"The King County Council (Council) adopted three controversial ordinances. The three were a "critical areas" ordinance, a clearing and grading ordinance, and a stormwater ordinance, which regulated the use of land only in unincorporated areas of King County. Those ordinances were adopted only by the votes of council members representing incorporated King County; council members representing the affected areas opposed each ordinance. Appellant Rodney McFarland filed referenda to allow voters to determine the council ordinances at election. Advocacy groups opposed to the referenda filed to enjoin the referenda and were joined by King County, which has taken over the case. The King County Superior Court by order prohibited election on the proposed referenda. A majority of this court now approves this denial of the people's exercise of their right to check legislative power."

And later in the dissent:

"Operating akin to an executive veto, the people’s exercise of the right of referendum on GMA-related local ordinances is entirely permissible. Referenda calling for a “yes” or “no” vote on nonmandatory, local ordinances passed pursuant to the GMA are consistent with GMA procedural requirements."

Update 12/22/06: Comments from the parties: Keith Ervin -- Seattle Times staff reporter

"In Washington state and maybe other places we're simply moving away from the concept of private property into more collectivist control of everything," said Rodney McFarland, of May Valley, the president of the Citizens' Alliance for Property Rights. "I don't think that's good." McFarland had submitted the petitions requesting that King County put its 2004 land-use rules on the ballot. Tim Trohimovich, planning director of the pro-growth-management group Futurewise, which went to court to block the referendums, welcomed the court ruling. (Futurewise's suit against McFarland was filed under the group's former name, 1000 Friends of Washington. The case title is 1000 Friends of Washington v. Rodney McFarland.) "We need effective growth management," Trohimovich said. "The voters have recognized it and the courts have recognized it — and in all those cases by a pretty wide margin."

Small-Lot Development in Manchester Draws Commissioners' Attention

2006-12-20T23:24:00.000-08:00

kitsapsun.com: Local

"Dateline:Manchester Kitsap County commissioners have issued a 90-day moratorium on development permits for small residential lots in the county’s rural zones, if they are to be served by on-site sewage systems designed to serve more than six dwellings. The moratorium, announced Monday morning shortly after the commissioners broke the news to the development community, is in response to efforts by owners of century-old lots in the Manchester Heights area of South Kitsap to build homes on them. But there are hundreds of similar historic lots in North Kitsap, as well. It’s an emergency action that won’t get a public hearing until Feb. 16, the commissioners said."

Suit Challenging Puget Sound Orca ESA Listing Dismissed for Lack of Standing

2006-12-20T23:18:00.000-08:00

AP Wire - Washington | kgw.com By PEGGY ANDERSEN

"A federal judge on Wednesday dismissed a lawsuit in which building and farm groups had challenged the federal listing of Puget Sound's resident killer whale population as an endangered species. U.S. District Judge Thomas S. Zilly dismissed the lawsuit, filed by the Building Industry Association of Washington and the Washington Farm Bureau, with prejudice, meaning it cannot be refiled. The BIAW and the farm bureau failed to prove they had standing in the case — that is, they failed to prove 'perceptible harm' from the listing, Zilly wrote. "

A Personal Note

2006-12-17T15:47:00.000-08:00

This past week I was elected to the Board of Directors of the Pacific Northwest Salmon Center.

"Our mission is to establish and conduct a research and learning center which will enhance public knowledge and appreciation for the values of Wild Salmon and related ecosystem health. The Preservation of Wild Salmon is directly linked to the preservation of other life and ecosystems. The Salmon Center will promote public knowledge and enhance appreciation for the value of Wild Salmon. The Center will facilitate a better understanding of ecosystem health through leading-edge research, interactive education, accessible information, unique displays, environmental seminars, and our annual Wild Salmon Hall of Fame celebration. Our 90 acre location is in Belfair, Washington, "where Hood Canal begins". As part of our hands on learning experiences we will be naturally treating stormwater from the Belfair Urban Growth Area, and returning 45 acres of hay fields to the orginal state of salt and freshwater marshes. Come learn with us!"

Puget Sound Partnership's Recommendations to the Governor

2006-12-17T11:47:00.000-08:00

The Puget Sound Partnership has sent its final recommendations to Gov. Gregoire. Quoting from the Executive Summary:

"What is a healthy Puget Sound ecosystem? In developing goals for the Puget Sound, the Partnership recognized that human well-being and natural systems are intimately connected. A healthy ecosystem means that fish and shellfish are plentiful and safe to eat, air is healthy to breathe,and water and beaches are clean for swimming and fishing. Well-being means that people are able to use and enjoy the lands and waters of the Puget Sound region, tribal cultures are sustained, natural resource-dependent industries such as agriculture, tourism, and fisheries thrive, and the region is economically prosperous. In a healthy ecosystem, the rich diversity of species flourish and are supported by plentiful, productive habitat, as well as clean and abundant water."

Hanford Reach National Monument Comprehensive Conservation Plan

2006-12-12T13:28:00.000-08:00

Comprehensive Conservation Plan

"The U.S. Fish and Wildlife Service is pleased to announce the release of the Hanford Reach National Monument Comprehensive Conservation Plan and Environmental Impact Statement. This is the overall plan that will guide management of the Monument for at least the next 15 years. The entire plan, or any of its components may be downloaded [by clicking link above.]"

The Executive Summary is a good place to start. Quoting from this Summary:

"The Monument was created from buffer lands that were no longer necessary for the mission of the DOE’s Hanford Site in eastern Washington. These buffer lands form a horseshoe around lands still needed by the DOE for its current missions. Being a buffer for the Hanford Site, the lands within the Monument have remained largely untouched, or at least undeveloped, for over six decades. It was this remnant of the vast shrub-steppe that once covered the interior Columbia Basin that lead to Presidential Proclamation 7319 on June 9, 2000, establishing a 195,000-acre national monument, managed by the FWS and DOE, superimposed over the outskirts of the 375,040-acre Hanford Site. The FWS administers the Monument as on overlay national wildlife refuge.
The Monument encompasses a biologically diverse landscape containing an irreplaceable natural and historic legacy. The limited development over the years has allowed for the Monument to become a haven for important and increasingly scarce objects of scientific, historic and cultural interest. It supports a broad array of newly discovered or increasingly uncommon native plants and animals. Migrating salmon, birds and hundreds of other native plant and animal species,some found nowhere else in the world, rely on its natural ecosystems. The Monument also includes 46.5 miles of the last free-flowing, non-tidal stretch of the Columbia River, the 51-mile “Hanford Reach.”

Comments are welcome. The comment period ends February 23, 2007.

Microsoft sues the City of Quincy

2006-12-09T22:46:00.000-08:00

Not exactly environmental law, but an interesting Public Disclosure Act case is now brewing in Quincy. Columbia Basin Herald -- By David Cole

"EPHRATA -- Internet and computer giant Microsoft Corp. hopes to block a public records request seeking design and building plans for its jumbo data center by suing the city of Quincy. The lawsuit, filed in Grant County Superior Court on Nov. 30, claims documents being sought via the state's Open Records Act contain confidential and proprietary information."

Grant Co. PUD raises funds for improvements at Wanapum and Priest Rapids dams

2006-12-03T08:53:00.000-08:00

Columbia Basin Herald -- By Chrystal Doucette

"COLUMBIA BASIN -- The Grant County Public Utility District is selling $253 million in bonds for improvements to two dams on the Columbia River. The PUD Board of Commissioners unanimously approved the sale of $186.4 million in bonds for the Wanapum Hydroelectric Development and $66.6 million in bonds to the Priest Rapids Hydroelectric Development Thursday. Bond Counsel for the PUD Nancy Neraas said the PUD expects to have the money in hand by Tuesday."

Moving ahead with Yakima River basin storage feasibility study

2006-12-02T16:17:00.000-08:00

"The Bureau of Reclamation and Washington Department of Ecology announced today [11/28/06] their decision to move forward into the feasibility phase of a storage study designed to bring more water to the Yakima River basin.
Further information, including the latest study document, Storage Study Team Technical Information and Hydrologic Analysis for Plan Formulation, is available from Reclamation at [storage study].
Meetings will be held after January 1, 2007 to explain Storage Study progress and to gather information for the NEPA and SEPA scoping process. At the end of these processes, results of the analyses will Be made available in a draft feasibility/environmental impact statement report."

Hanford: The Next Brouhaha

2006-11-30T09:38:00.000-08:00

Tri-City Herald -- By Annette Cary

"The Tri-City Development Council will study whether Hanford might play a role in recycling fuel from commercial nuclear power reactors, a very early step toward a possible return to production at the nuclear reservation. The study will include a look at whether Hanford's Fast Flux Test Facility could be restarted to do testing for the recycling program. The Department of Energy announced Wednesday that Hanford is one of 11 sites across the nation that will be considered for the project. The first step is a study of the sites with $16 million in grants plus $4 million held in reserve."

Proposed LNG Terminal on the Lower Columbia

2006-11-29T13:17:00.000-08:00

In an short, interesting article in the Vancouver Columbian, Kathie Durbin reports on those pro, con, and ambivalent to the development of a LNG terminal on the lower Columbia River. The article is so well done that it not possible for me to just grab a couple paragraphs to give a fair summary. If you're interested in the salmon, the Columbia, and development, give it a read -- if only to see how a skillful reporter does her job.

Dams and Fish

2006-11-28T10:19:00.000-08:00

In anticipation of the 50th anniversity of the closing of The Dalles Dam in March 1957, and the subsequent drowning of Celilo Falls, a new blog has been established by the Columbia River Inter-Tribal Fish Commission. {HT to the Dalles Chronicle.}

"On the morning of March 10, 1957, the massive steel and concrete gates of The Dalles Dam closed and choked back the downstream surge of the Columbia River. Six hours later and eight miles upstream, Wy-am (Celilo Falls), the age-old Indian salmon fishery was under water."

TransAlta closes one Centralia coal mine, plans to open another

2006-11-28T10:13:00.000-08:00

SeattlePI

"'The maturity of the Centralia mine, its rapidly deteriorating mining conditions and escalating costs from excessive overburden have combined to make the mine uneconomic,' Snyder said. 'In order to produce competitively priced electricity from our Centralia coal-fired plant, we have to meet the fuel requirements for our plant from a more predictable and economic source.'
TransAlta will seek approval for coal mining nearby at a site known as West Field, but that process is expected to take from three to five years, Jackson said. Meanwhile, the company has signed long-term contracts with Rio Tinto Energy America and Peabody Energy for coal with less sulfur and mercury from the Powder River Basin in Wyoming and with BNSF Railway Inc. to handle shipments, according to the statement."

Relicensing Grant County PUD Dams

2006-11-27T18:16:00.000-08:00

Columbia Basin Herald -- By David Cole

"EPHRATA -- The Grant County Public Utility District received a draft water quality certificate from the state Department of Ecology for the Priest Rapids Hydroelectric Project. The draft certificate, received earlier this month, is currently under review by the utility district's management. The actual document being reviewed, the 'Draft 401 Certification,' refers to Section 401 of the federal Clean Water Act. It analyzes the effects Priest Rapids and Wanapum dams have on the Columbia River and places conditions on the PUD to protect water quality. The PUD has applied for the water quality certification annually since 2003, most recently October 2006, as a provision of the Clean Water Act. Ecology is seeking public comments on the draft certificate prior to issuing the "Final 401 Certification." Information on submitting comments can be found on Ecology's Web site, www.ecy.wa.gov."

Ecology Delivers Columbia River Report to Legislature

2006-11-25T19:07:00.000-08:00

The Dalles Chronicle

"YAKIMA — A new report from the Washington Department of Ecology (Ecology) takes an initial look at how water from the Columbia River is being distributed now and how much water might be needed to support the region in the future. The report, delivered this week to the Washington Legislature, is required under the state’s new Columbia River water law. It is available online at www.ecy.wa.gov, click on the “Managing our Water” icon. Written in two sections, the report includes a water-supply inventory, and a long-term water supply and demand forecast. It also identifies conservation and storage projects that might be used to meet future water needs."

Columbia Basin Gas Play

2006-11-25T19:00:00.000-08:00

Spokane Journal of Business

"The Columbia Basin long has been believed to hold large amounts of natural gas sealed beneath thick layers of basalt, and the news that completion work was being done at the Mattawa well was met with keen interest. Mattawa is northwest of the Hanford Nuclear Reservation. On Oct. 26, the Washington state Department of Natural Resources logged “spectacular results” in an auction of drilling leases in Eastern Washington, says William S. Lingley Jr., the department’s chief geologist. He cautions that industry has to test an area extensively before it can determine whether it’s commercially viable to develop a gas field. While no one knows precisely how big the Columbia Basin geologic formation is, “most people think it extends … to somewhere west of Ritzville,” Lingley says. The Web site Financial Sense Forum says that in the Denver conference, Parker said, “The geologic theory that we’ve all kind of operated under here for the last couple of years, and really was identified by Shell 25 years ago, has been confirmed, if you will, with another well. We believe we have encountered what we hoped to encounter prior to drilling the well, and we will be very interested to see what actual completion results are as we go into the remaining part of this year.” Says Lingley, “What they said in effect was that they had achieved what they set out to do when they drilled this ‘wildcat.’”"