ELUL Blog – April 2024 Round-Up

Below is this month’s roundup of updates, 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 blog post about any current legal issues.

A. Significant Court Decisions

Benton County Water Conservancy Board v. Department of Ecology, __ Wn.2d __, case no. 101838-0 (April 11, 2024).

A water conservancy board lacks standing to challenge a Department of Ecology policy addressing the division of water rights between multiple property owners.  Ecology manages water resources by processing water right transfers between water right holders. Water conservancy boards help expedite voluntary transfers. Boards hold the same authority as Ecology to review water right transfer applications, but are subject to Ecology’s oversight.

A water right transfer is permitted under statute so long as there is no increase in the quantity of water used, otherwise known as the historic beneficial use. Transfers must be made by application to Ecology, including public notice. Ecology has a water right tracking system, where it maintains information about all water right transfers. When multiple property owners share a water right, Ecology may administratively confirm the division of the water right. It does so using an internal policy.

In 2021, a portion of water rights were sold, and the Benton County Water Conservancy Board requested Ecology’s administrative confirmation under the agency policy. Ecology rejected the request. The Supreme Court held the Board lacked standing because it failed to prove injury-in-fact or redressability.

Sheetz v. County of El Dorado, __ U.S. __, 144 S.Ct. 893 (2024)

In Sheetz, the United States Supreme Court extended a series of decisions addressing the constitutionality of development exactions, commonly known as the Nollan/Dolan rule, to legislative exactions like impact fees. That decision has implications for impact fees in Washington, as explained in a recent post by Dickson Frohlich Phillips  Burgess, available at: U.S. Supreme Court Opens Door for Traffic Impact Fees Challenge in Washington State Under Takings Clause – Dickson Frohlich Phillips Burgess (dicksonlegal.com).

B. 2024 Mid-Year Wrap-Up

We just held another great Mid-Year CLE at Suncadia, April 18-20. The CLE co-chairs, AT Miller and Dylan Stonecipher, coordinated a sold-out in-person CLE with 13 presentations on current legal issues likely to affect ELUL section members, including:

• The 2024 Legislative session
• Recent land use judicial decisions
• Implementation of the Climate Commitment Act
• EFSEC’s process and considerations for project developers and interested parties
• PCHB and SHB case updates and practice tips
• The Hearing Examiner process and practice tips for administrative land use hearings
• Housing legislation and policy
• Environmental justice in land use permitting, SEPA appeals, air quality, toxic cleanups, and transportation planning
• The Sackett decision and the impact on federal and state wetland regulation
• The regulatory landscape for PFAS
• Natural resource extraction and missing and murdered indigenous people
• Mitigation and litigation for wildfires
• An ethics presentation

The event was sponsored by: Beveridge & Diamond, Cascadia Law Group, Dickson Frohlich Phillips Burgess, Hillis Clark Martin & Peterson, McCullough Hill, Miller Nash LLP, Perkins Coie, Schwabe, Williamson & Wyatt.

WSBA-CLE will offer the CLE online if you weren’t able to attend but are interested in purchasing any of the presentations.

C. Job Postings

• King County Prosecutor’s Office, Land Use Section:  Job Opportunities | King County Careers (governmentjobs.com)

D. Upcoming ELUL Activities

• Elections for Executive Committee positions:  watch your email and make sure to vote!
• May 8:  ELUL EC Meeting (virtual)
• June 12:  ELUL EC Meeting (virtual)
• August 13:  ELUL One-Day CLE in Seattle and virtual – land use focus
• September 24:  WSBA Legal Lunchbox on Equity & Climate

E. Social Media and List-Serv Links

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.