ELUL Blog – March 2024 Round-Up

Below is this month’s roundup of links and brief descriptions of significant legal issues that may affect members of the Environmental and Land Use Law section. Please don’t hesitate to contact an ELUL Executive Committee member or the blog editors, Derek Gauthier (Derek.Gauthier@pkglaw.com) or Chris Pierce-Wright (CPierceWright@dfpblaw.com), if you’d like to present at an upcoming CLE or provide a more detailed post about any current legal issues.

A. Significant Court Decisions

Puget Soundkeeper Alliance V. Pollution Control Hearings Board, No. 85665-1-I, 2024 Wash. App. LEXIS 508* (Mar. 18, 2024).

In the second appeal from the Pollution Control Hearings Board (“PCHB”) in the last two months, this case considered the interpretation of the Department of Ecology’s 2020 Industrial Stormwater General Permit (the “ISGP”), issued to regulate stormwater discharge under both state and federal clean water laws. At issue was whether the permit’s application to “transportation facilities” extended to an entire facility, not just those limited portions in which covered transportation activities occur. Before the PCHB, industry parties asserted that the narrower interpretation should apply, consistent with an express limitation under federal law (which states that the permit applies to “only those portions” of a facility associated with vehicle maintenance, equipment cleaning, or airport deicing). The PCHB agreed with industry, concluding that, as a matter of law, the ISGP was unambiguous and applied only to limited portions of covered transportation facilities.

The Puget Soundkeeper Alliance appealed the PCHB’s order and, on direct review, Division One of the Court of Appeals reversed. The court concluded that the ISGP unambiguously applies not only to transportation facilities, but to the entirety of any facility in which covered transportation activities took place. The court added that, even if the ISGP could be considered ambiguous, it should be considered a regulation for which Ecology’s interpretation is entitled to “great weight.” The court set aside the PCHB’s order and remanded the issue for the PCHB to grant summary judgment in favor of Ecology and Puget Soundkeeper (the ISGP applies to an entire facility), and to consider an additional issue previously rendered moot.

B. Legislation to Watch During 2024 Short Session

Thursday, March 7 marked the last day of the 2024 legislative session. Bills that did not pass will not return to their House of Origin due to elections this coming fall, and will need to be re-introduced in the 2025 session. The Governor had 5 or 20 days to act on the bills that passed, depending on whether they were delivered to him prior to adjournment. The Governor could either sign, veto or partially veto a bill.  Of the 53 passed bills that ELUL was tracking this session, the Governor ultimately signed 51 and partially vetoed two (2134 and 5784). The final version of the ELUL’s Legislative Tracker summarizing the status of the passed bills  was sent to the ELUL listserv on April 5.

If you’re signed up for the ELUL list-serv, you’ll receive periodic updates on the status of legislation that might be of interest to our members (in particular, affecting Washington land use and environmental law).

C. Current Job Openings

• Pollution Control/ Shorelines Hearings Boards — Administrative Appeals Judge
• Growth Management Hearings Board — Board Members
• Van Ness Feldman — mid-level land use, environmental, and electric regulatory associates

D. Upcoming ELUL Activities

• Through April 26 – Membership applications for ELUL Executive Committee (On April 4 there is an interested applicant “Drop In”)
• April 18-20 – Mid-Year CLE at Suncadia (and virtual), register today.
  • Thanks to our sponsors! Beveridge & Diamond, Cascadia Law Group, Dickson Frohlich Phillips Burgess, Hillis Clark Martin & Peterson, McCullough Hill, Miller Nash LLP, Perkins Coie, Schwabe, Williamson & Wyatt
• May 4 – Application Deadline for Law Student Summer Scholarships:  Contact Rachel Sinsheimer for more information (Rachel@CorvidLaw.com).  The EC will consider applications at its May meeting.

E. Social Media and List-Serv Link

Sign-up for the ELUL list-serv to receive legislative updates during session, CLE dates and registration, job postings, and other news!

And don’t forget to follow or like the ELUL on Facebook, LinkedIn , and our Blog.