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Category Archives: Environmental

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Washington Supreme Court Rejects Legal Nonconforming Use Claim for King County Recycling Facility

Posted in Environmental, Land Use

Last week, the Washington Supreme Court decided another case dealing with the scope of the legal nonconforming use doctrine.  Legal nonconforming uses, commonly referred to as “grandfathered” uses, are generally recognized under Washington law, but a rather complex, fact-driven analysis is required to determine whether such a “grandfathered” use exists.  Under this doctrine, local regulations… Continue Reading

In Alaska, Oil and Gas Leases Convey Property Rights; Permits Do Not

Posted in Environmental

The Supreme Court of Alaska held that the Alaska Constitution requires only one “best interest finding” that an oil or gas project is in the state’s best interest, although subsequent permitting decisions must be made after a “hard look” that considers cumulative impacts.  Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), Decision No. 6769… Continue Reading

Getting the Lead Out

Posted in Environmental

As originally published in the Daily Journal of Commerce Lead’s adverse effects on people, particularly young children, have been reasonably well understood for decades. Children afflicted by lead poisoning can suffer permanent brain and nervous system damage. This can lead to a lower IQ, anemia, slower growth, and behavior, learning and hearing problems. Afflicted adults… Continue Reading

Solar Roof Top Leasing

Posted in Environmental

Ikea Portland just completed a solar installation on its retail facility by powering up a nearly 500 kilowatt system. Ikea joins a growing list of companies, including Wal-Mart, Google, and Costco, that are also adding solar panels to their buildings. The question that often pops into my mind as I look out my office window… Continue Reading

“Manner” or “Purpose” – More Confusion from the PCHB in Painted Summer Hills, LLC v. Department of Ecology, PCHB No. 09-006

Posted in Environmental

If you have a water right issued by the Washington Department of Ecology, you may not think very much about whether it is called a water right “permit” or a water right “certificate.” Permit, certificate, isn’t it the same? Truth be told – No, these documents are not the same, and may be treated very… Continue Reading

Oregon adopts HB 3325, an Improved Authorization of Releases of Liability for Potential Brownfield Purchasers

Posted in Environmental

House Bill 3325 provides a mechanism for potential purchasers to obtain a higher level of certainty regarding potential environmental liability. A “brownfield” is a vacant or underused property where actual or perceived environmental contamination complicates expansion or redevelopment. Prospective purchasers of brownfields may decline to buy or develop the land out of fear of the potentially high… Continue Reading

WaterSense: Another Green Certification Program?

Posted in Environmental

It is quite possible that everyone has heard about WaterSense already, and I am simply late to the party. But, on the off chance that you haven’t heard, let me be the one to tell you about the Water House, which is the very first WaterSense certified home in Oregon. WaterSense is a new EPA… Continue Reading

Legal Implications of Vapor Intrusion for Owners, Developers

Posted in Environmental

Authored by: Peter Sergienko As published in the Daily Journal of Commerce Vapor intrusion is defined in Oregon Department of Environmental Quality guidance as the migration of volatile organic compounds from the subsurface into buildings. Common examples of VOCs are gasoline, diesel and solvents used to clean metals, thin paint, and dry-clean clothing. VOCs are… Continue Reading

Potential Legal Effects of LEED Lawsuit

Posted in Environmental

As published in the Daily Journal of Commerce Last month, Henry Gifford, a “building design and construction professional” and frequent critic of LEED certified buildings, filed a class action lawsuit in the United States District Court for the Southern District of New York against the U.S. Green Building Council, claiming $100 million in damages. The… Continue Reading

LEED vs. Passive House: What’s the difference?

Posted in Environmental

As published in the Daily Journal of Commerce As a Leadership in Energy and Environmental Design Accredited Professional, I readily defend LEED’s standard and certification to critics who question its alleged greenness and whether it lives up to its hype. "You get points for including bike parking spaces?" they protest. "C’mon!" Nonetheless, I stand by… Continue Reading

Department of Ecology Releases Guidance on Climate Change and SEPA

Posted in Environmental

Authored by:  Craig Gannett, Lauren Giles, and Clayton P. Graham On May 27, the Washington Department of Ecology (“Ecology”) released draft Guidance regarding the analysis of climate change impacts under Washington’s State Environmental Policy Act (“SEPA”). The Guidance, which will be open for comment until June 25, proposes extensive analysis of both direct and indirect greenhouse… Continue Reading

Climate Change to Receive More Attention under NEPA

Posted in Environmental

Authored by:  Craig Gannett, Kerry Shea, Richard M. Glick and Lauren Giles Climate change will receive more attention in the analysis of environmental impacts under the National Environmental Policy Act (NEPA), according to a Draft Guidance issued on Feb. 18 by the White House Council on Environmental Quality (CEQ). Charged with advising federal agencies on… Continue Reading

EPA to Regulate Greenhouse Gas Emissions

Posted in Environmental

Authored by:  Lauren Giles, Kerry Shea, and Clayton Graham Findings recently issued by the Environmental Protection Agency (EPA) could be the first step in national regulation of greenhouse gas (GHG) emissions under the Clean Air Act. Although the findings apply only to new motor vehicles and engines for the time being, they lay the groundwork… Continue Reading

President Obama’s Response to Bush Consultation Rules under Endangered Species Act

Posted in Environmental

In December, we discussed a rule finalized during the final weeks of the Bush administration which limited agencies’ consultation requirements under the Endangered Species Act (ESA).  In a March 3, 2009 memorandum to the heads of executive departments and agencies, President Obama requested that the Secretaries of the Interior and Commerce “review the regulation [and] determine… Continue Reading

New Rule Limits Agency Consultation Under Endangered Species Act

Posted in Environmental

In a move decried by many environmentalist groups, the Interior Department finalized a rule which changes the way government agencies administer and comply with the Endangered Species Act (ESA). This new rule allows agencies to decline a formal consultation (with NOAA or the US Fish and Wildlife Service) if the agency determines that the direct and… Continue Reading

Development Buffers under the Endangered Species Act?

Posted in Environmental

A consultation under the federal Endangered Species Act (ESA) could potentially impact development on property near shorelines in Washington State. In response to a consultation by the Federal Emergency Management Agency (FEMA), the National Marine Fisheries Service (NMFS) issued a biological opinion concluding that FEMA’s administration of the National Flood Insurance Program (NFIP) in the… Continue Reading

Rainbarrels: New Regulations Coming Soon

Posted in Environmental

Rain is free, right? And nobody cares about that rainbarrel I have out back, right? Well, maybe. Washington State has a prior appropriation water code that provides that “all water above, upon, or beneath the surface of the earth” is public ground water subject to potential water right permit requirements. RCW 43.27A.020: Definitions See also,… Continue Reading

Contractor Jailed in Reservoir Pollution Case

Posted in Environmental

After admitting in a guilty plea to polluting a water reservoir with concrete slurry, a Gig Harbor project manager will now spend 30 days in federal prison. The contractor was in the middle of filling a caisson, located in the reservoir, with concrete when the concrete pumps broke.  According to the guilty plea, the project… Continue Reading