Northwest Land Matters Update - March 2015

March 17, 2015

President's Executive Order Expands Regulated Floodplain to Account for Climate Change

On January 30, 2015, President Obama amended Executive Order 13690, regarding federal agencies’ consideration of floodplains, to redefine the regulated floodplain and establish the Federal Flood Risk Management Standard (FFRMS) aimed at protecting federal projects, approvals, and investments from increased flood risk associated with climate change. 

Originally approved by President Carter in 1977, Executive Order 11988 required federal agencies to avoid, to the extent possible, the adverse impacts inherent in occupying the floodplain.  President Obama’s amendment significantly expands that original vision to a broader geographic area and applies more restrictive development standards with the goal of insuring that federally funded, permitted, or owned projects “last as long as intended by considering risks, changes in climate, and vulnerability.”  FFRMS, p. 5.  Implementation of this Executive Order as currently written would dramatically impact a wide-range of projects, from levee construction and certification, to oil and gas pipelines, to wetland fill permits.

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IN BRIEF

Inslee Declares Drought Emergency

After a record-dry winter, Gov. Inslee declared a drought emergency for three regions: the Olympics; and the east-central and southern Cascades.  Ecology has requested $9 million from the state Legislature to prepare for the drought, money that would go toward deepening wells, changing existing water rights and facilitating water rights transfers, among other measures. VNF is working to prepare clients for this summer’s water shortage in the PNW, which may have serious implications for water use, Endangered Species Act listed species, and the operation of hydroelectric projects.  For more information, please contact Partners Adam Gravley awg@vnf.com or Matt Love, mal@vnf.com.    

WA Supreme Court Denies ReviewVested Rights Remain Limited, For Now

On February 4, 2015, the State Supreme Court denied review of the August 25, 2014 Potala Village, et al. v. City of Kirkland Court of Appeals decision rejecting Potala’s argument that filing a complete application for a shoreline substantial development permit vested their right to the applicable zoning, for the entire project, at the time of the filing. For now, vested rights remain limited to the three statutory processes:  subdivision applications, building permit applications and Development Agreements.  VNF is tracking proposed legislation, presumably in response to Potala, which could restore common law vesting or expressly define the types of applications triggering vesting.

Cougs Win Water Road Game 6-3 at Supremes

In Cornelius v. Department of Ecology, a long-awaited decision regarding Washington State University’s water rights, the Washington Supreme Court upheld the “good standing” and “municipal” status of WSU’s water rights under the 2003 Municipal Water Law.  In a 6-3 decision, the state’s high court rejected all of the challengers’ theories that the Department of Ecology had unconstitutionally applied provisions of the 2003 law and that “domestic” purpose water rights had lapsed.  The decision affirmed applications to amend WSU’s water rights, including the “unperfected” portions that reflect as-yet unused quantities intended for future use, to enable a well relocation and consolidation project on campus.  Writing for the majority, Justice Owens concluded that this first “as-applied” constitutional challenge to the 2003 law failed for the same reasons that a “facial” challenge had failed in a 2010 case and reaffirmed the validity of the important 2003 law.  Van Ness Feldman represents the Washington Water Utility Council as amicus curiae in the Cornelius case.

DNR Still Considering Aquatic Land Habitat Conservation Plan but Legislature May Stop It

On September 5, 2014, the Washington State Department of Natural Resources (DNR) issued a draft Aquatic Land Habitat Conservation Plan (HCP) under the Endangered Species Act and an associated draft Environmental Impact Statement. The DNR HCP is intended to apply to activities on state-owned aquatic lands, including aquatic land leases, over-water structures, and outfalls.  It outlines an extensive list of conservation measures that developers will have to implement to address impacts from overwater structures, log booms, and shellfish aquaculture on those lands.  DNR has currently received more than 500 comments on the draft.  The State Senate recently passed SB 5959, which requires DNR to withdraw the Draft DCP and requires further work before DNR may propose any new plan.  The bill is scheduled for a House hearing on March 19th.

WA Supreme Court Clarifies Premises Liability Law after Tacoma Mall Shooting

In answering questions certified by the Ninth Circuit, the Washington Supreme Court in Brendan McDown v. Simon Property Group, Inc. has decided that a landowner or possessor of property owes a duty to protect business invitees from third party criminal conduct when such conduct is foreseeable based on past experience of prior similar acts.  The prior acts of violence must have been sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous to have put the business on notice that such an act was likely to occur.  The Court declined to decide whether the general place or character of a business can give rise to a duty to protect invitees against third party criminal conduct.

WA Supreme Court Provides Guidance Regarding Municipal Obligations for Maintaining Drainage Systems Constructed in Residential Plats

The Supreme Court recently clarified its approach to interpreting residential plat documents in Crystal Ridge Homeowners Association et al v. City of Bothell,  a case involving a dispute over maintenance of a drainage pipe. This case provides helpful guidance for local governments and developers in drafting plat documents, emphasizing the importance of precision and clarity in drafting plats and related documents.  The Association argued that the City was responsible for maintaining the pipe because the Crystal Ridge plat dedicated an easement "for the purpose of maintaining and operating stormwater facilities." The City argued that it was not responsible for the pipe in question because, according to the City, that pipe was a "groundwater facility,” not a "stormwater facility."

The Court rejected the City's argument based on the language of the plat, which did not expressly distinguish between stormwater and groundwater.

Appeals Court Rules on Municipal Water Resource Availability

On Feb. 23, 2015, the Washington State Court of Appeals ruled in Whatcom County’s favor in Whatcom County  v. Eric Hirst, et al., a GMA case challenging the adequacy of the County’s rural measures protecting water resources.  The Court reversed the Growth Management Hearings Board, which had previously concluded that the County’s measures did not comply with the GMA.  The Court’s decision provides helpful guidance to counties regarding the adoption of rural measures and re-affirms the need for a cooperative approach between counties and the Department of Ecology when addressing water availability issues. Van Ness Feldman represented the County in this appeal.

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