Vested Rights – Now You Have Them, Now You Don’t

Ray Liaw

The vested rights doctrine in Washington has long provided developers a measure of certainty that the regulations in place at the time of their permit application would apply to the development even if subsequent regulations were adopted. At least that was the intent. Several court decisions recently declared that the common law vesting doctrine “is now statutory,” thereby limiting both the types of development applications that vest under state law and the regulations to which they vest. These judicial attempts to “reconcile” the doctrine with 25-year old legislative enactments leave vesting in doubt for most pre-building permit development applications.

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IN BRIEF 

“Spite” Trees: On the Chopping Block

In September, the State Court of Appeals, Div. I, held that planting a single tree with the malicious intent to block a neighbor’s view can be an illegal spite structure, prohibited by RCW 7.40.030. The court rejected the notion that a violating “structure” need be artificial, instead holding that the court should determine whether the barrier occurred naturally. The court also held that a driveway light installed in compliance with city code may still present a nuisance under RCW 7.48.010, if the court determines it as such, after balancing the rights, interests, and convenience unique to the case. The court noted that a municipal code may not modify the definition of nuisance adopted by the legislature. The property owner undertook both the tree planting and light installation during litigation with the adjoining property owner over alleged timber trespass and other claims concerning the property owners’ shared boundary line and property rights.

Muddy Waters: Potential for Additional Permitting Ahead

The Washington Department of Ecology (Ecology) submitted its proposed 303(d) list of the state’s polluted waters to EPA for review and approval.  Elevated temperatures, low dissolved oxygen, high fecal bacteria levels, and pH changes remain the leading causes of water quality impairment in Washington. Once approved, all waters in the 303(d) list may require water cleanup studies and establishment of Total Maximum Daily Loads (TMDL) for key pollutants.  Industries and governments may need to provide additional water quality treatment as agencies update National Pollution Discharge Elimination System (NPDES) permits. For anyone seeking coverage under a Corps Nationwide Permit, discharges to a 303(d) listed water may require individual Clean Water Act § 401 water quality certification from Ecology. 

Woes Continue for WOTUS

The 6^th Circuit Court of Appeals has issued an Order of Stay temporarily stopping the Army Corps and EPA from applying the new Waters of the United States (WOTUS) Rule. The nationwide stay comes on the heels of the preliminary injunction issued by the federal District Court in North Dakota that halted use of the WOTUS rule in 13 states.   The 6th Circuit issued the stay, in part, to allow it time to determine whether it has jurisdiction or whether the federal district courts have jurisdiction to determine the legality of the WOTUS Rule on the merits.   The 6^th Circuit concluded that the 18 states that filed the stay request demonstrated a “substantial possibility of success” that the WOTUS rule is at odds with the Supreme Court’s ruling in Rapanos, is procedurally flawed because the distance limitations in the new rule are not a “logical outgrowth” of the proposed rule, that there was a failure to provide adequate opportunity for comment, and that the rule is arbitrary or capricious because the record is devoid of specific scientific support for its distance limits.  The Court did recognize that the Army Corps and EPA had “conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards that conform to protect water quality that conform to the Supreme Court’s guidance,” but issued the stay to maintain the pre-WOTUS rule status quo, to allow time for a more deliberate determination of the WOTUS rule’s validity and to provide nation-wide consistency in the interim.  For now, the Army Corps and EPA are expected to continue to follow their December 2, 2008 Guidance 2008 to determine whether federal permits are needed for work in ditches, streams, and wetlands.    

Yelm’s Municipal Water Right Cancelled Launching Debates About “Withdrawal”

In a 6-3 decision, Foster v. Dep’t of Ecology and City of Yelm, the Washington Supreme Court held that the Department of Ecology exceeded its authority in issuing a new municipal water right permit where all seasonal stream flow impacts were not off-set with “water-for-water” or in-kind mitigation.   The hearings board and lower court had upheld the permit on grounds that the city’s mitigation plan, which included both in-kind mitigation (water rights retirement and reclaimed water) and out-of-kind mitigation (land acquisition, stream restoration), qualified the city’s proposed groundwater “withdrawal” under the “overriding considerations of the public interest” (OCPI) provision of state water law.  In reversing, the Court majority found that the new permit would impair minimum instream flows in the “shoulder seasons” in April and October that were not covered by the retired irrigation water rights and thus ran afoul of the state’s zero tolerance rule against infringement of protected stream flows.  In analyzing the OCPI provision in the context of the statutory scheme, the majority opinion adopts a new interpretation of the term “withdrawal” such that the term means only a temporary use of water and not a permanent right.  This “novel” interpretation was criticized as “invalid” reasoning by the three dissenting justices.  Because the term “withdrawal” appears throughout state water law, the Foster decision could have much broader consequences and will be studied and debated regarding its larger meaning.  

To Meet or Not to Meet?

In Citizens Alliance for Property Rights Legal Fund v. San Juan County, the State Supreme Court provided clarity on the types of committees subject to the Open Public Meetings Act (OPMA), as well as when a “meeting” takes place under OPMA.  OPMA applies to the “governing body” of a public agency under RCW 42.30.020(2), which includes “any committee thereof when the committee acts on behalf of the governing body.”  Citizens Alliance addressed whether meetings by an informal group (including county staff and several councilmembers) to discuss the county’s critical areas ordinance update were subject to OPMA.  Relying on a 1986 attorney general opinion, the Court concluded that the governing body must create a committee in order to be a “committee thereof,” regardless of whether members of the governing body participate on that committee.  Additionally, the committee “acts on behalf of the governing body” when it “exercises actual or de facto decision-making authority for a governing body,” not just issues advisory opinions.  Finally, the Court ruled that a “meeting” occurs for purposes of the OPMA, “when a majority of its members gathers with the collective intent of transacting the governing body's business.” The Court’s reasoning provides helpful guidance as to when a series of email and telephone communications between members of a governing body constitutes a “meeting” under OPMA.

Update on Federal Flood Risk Management Standards

On January 30, 2015, President Obama had issued an Executive Order establishing a new Federal Flood Risk Management Standard (FFRMS) applicable to federal actions.  Concurrent with that Executive Order, FEMA had published Draft Implementing Guidelines for the FFRMS.  

UPDATE: On October 8, 2015, the Water Resources Council issued revised Implementing Guidelines, including revisions to the FFRMS.  Those revision affected a number of topics.  The two key changes are:

• The revised Implementing Guidelines clarify that the higher FFRMS floodplain (described in the prior article) applies only to Federally Funded Projects, and not all federal actions. Federal actions that are not federally funded remain subject, at a minimum, to the standards of the pre-existing Executive Order 11988.  Higher standards are recommended for “critical actions.”

• There is no set deadline for the 50+ affected federal agencies to revise their regulations and procedures to implement the FFRMS.  Instead, the Implementing Guidelines call for the agencies to implement the FFRMS as soon as possible.  In the interim, federal agencies remain subject to the pre-existing Executive Order 11988.

For more information about the FFRMS and how it may affect your projects and facilities, contact Molly Lawrence

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