Contact:
PO Box 40117
Olympia, WA 98504-0117
E-mail
The Ecology Division is comprised of 29 attorneys and 16 professional staff. The division represents the Department of Ecology, Puget Sound Partnership, Pollution Liability Insurance Agency, the State Conservation Commission, and the Oil Spill Advisory Council.
Back to top
The division works to resolve environmental problems and disputes using a variety of legal tools including negotiation, multi-party mediation and litigation when necessary. Division attorneys provide advice on a broad spectrum of matters, including permitting, legislation, rule-making, and enforcement. The division’s practice includes hearings before administrative boards as well as trials and appeals before state and federal courts.
General Practice Areas
One of the areas of the division’s workload is in the area of water allocation and management. In addition, division attorneys work to assist Ecology in oversight of the United States Department of Energy’s (DOE’s) cleanup of the radioactive waste at Hanford has also intensified as the result of DOE’s recent efforts to send off-site waste to Hanford for storage or disposal. Other areas of significant workload include supporting the Department of Ecology with the cleanup of contaminated sites, stormwater regulation, regulation of hydroelectric dams, development of instream flow regulations, and implementation of new shoreline management guidelines.
Water Resources: Cases in this area include defending permit decisions, rules and enforcement actions as well as prosecuting general stream adjudications. In the area of litigation, which drives the majority of the division’s workload in the water resources area, division attorneys are currently litigating issues of enforcement, instream flow regulation, tribal water rights, municipal water rights, and a significant number of cases involving the change or transfer of existing water rights. In the state’s longest running general adjudication, Acquavella, the division will continue with efforts to use mediation to significantly narrow the issues remaining to be litigated.
An Introduction to Washington Water Law (360 pages, pdf 13.2MB)
Water Quality and Spill Prevention Work: The division’s water quality practice involves a significant amount of work providing advice on permit actions and defending challenges to Ecology’s permit decisions. This includes enforcement actions such as orders and penalties that are subject to administrative hearings and judicial review. The division also assists the Department of Ecology regarding its efforts to address non-point source pollution and its implementation of the Total Maximum Daily Load requirements of the federal Clean Water Act. A significant component of work in this area is associated with advising and defending the department’s decisions regarding the regulation of stormwater discharges and the adoption of new statewide water quality standards. For the spill prevention program, division attorneys represent Ecology in numerous enforcement actions against companies responsible for oil spills and have assisted in development of rules governing the contingency plans for oil handling facilities in Washington.
Hazardous Waste Management and Cleanup: In this area of the division’s practice, assistant attorneys general negotiate and enforce consent decrees and orders that require cleanup of sites contaminated with hazardous substances and in some cases that require compensation for impacted natural resources. The division also defends Department of Ecology permit decisions and enforcement actions against facilities that generate, treat or dispose of hazardous waste in order to prevent the creation of more contaminated sites. The division continues to look for opportunities to promote “brownfields development” through the use of innovative agreements that allow purchasers of contaminated property to resolve liability concerns, thus freeing up the properties for development. In addition, the division is also assisting the department in its efforts to ensure cleanup at federal facilities.
Shorelines: Division attorneys are involved in resolving Shoreline Management Act disputes at all levels of administrative and judicial review. The primary cases handled in the Ecology Division in this area are Shoreline Hearings Board appeals of department actions regarding local government shoreline permit decisions. As a consequence of new shoreline management guidelines, a significant component of future work will focus on rule proposal and adoption and then development, review and appeals focused on the updating of shoreline master programs across the state.
Air Quality: In this area, the division defends Department of Ecology permit decisions and enforcement actions, and also represents the state in multi-state efforts including climate change-related litigation challenging EPA’s decision not to regulate carbon dioxide as a pollutant under the Clean Air Act. Devision attorneys also advise on major rulemaking efforts such as implementation of California's "clean car" standards (which Washington adopted in 2006), mitigation measures for carbon dioxide emissions, and the proposed establishment of a mercury standard that would be more stringent than the federal standard.
Environmental Bankruptcy: Washington played a leadership role in several major bankruptcy proceedings in which the debtors attempted to abandon contaminated property or transfer the property free and clear of significant environmental liabilities. Our aim in each of these proceedings was to avoid creating “orphan” sites and to ensure that satisfaction of environmental liabilities is a condition of any protection granted by the bankruptcy courts.
Other: Division attorneys also work in a number of other areas including the regulation of water well drillers, solid waste management and environmental review of significant projects under the state Environmental Policy Act. The area of hydroelectric dam regulation has been an increasing focus of the division and the work has extended beyond Washington cases to coordinating national efforts to protect state authority in this area.
Back to top
Lummi: At issue in this lawsuit is the Lummi Nation’s claim to a federal reserved water right to all ground water underlying the Lummi Peninsula. After two rounds of dispositive motions, the parties entered settlement discussions aimed at specifying how groundwater would be developed and managed by the Nation and non-Indian water users.
Global Warming Suit by States: Washington joined a number of other states in challenging a decision by the U.S. Environmental Protection Agency (EPA) that carbon dioxide is not a “pollutant” under the Clean Air Act. The U.S. Supreme Court ruled in favor of the States in April 2007.
Lake Roosevelt Litigation: Washington participated in a citizens suit filed by members of the Colville Confederated Tribes against Teck Cominco Metals, a Canadian corporation, under the federal Comprehensive Environmental Response, Compensation and Liability Act (FERCLA). For decades, Teck Cominco discharged tons of hazardous slag from its mining operations into the Columbia River, which flowed downstream, crossed the border and contaminated Lake Roosevelt. A decision from the Ninth Circuit Court of Appeals in July 2006 affirmed the authority under CERCLA to require Teck Cominco to address this contamination. The Company's request for U.S. Supreme Court review is pending.
Municipal Water Law Challenge: The consolidated Superior Court lawsuits brought by several Indian Tribes, individuals, environmental organizations and a commercial fishing organization challenge the validity of the Municipal Water Law of 2003 (MWL). The state, the Department of Ecology and the Department of Health are named as defendants. The plaintiffs contend that the MWL violates the Due Process Clauses of the U.S. and Washington Constitutions and the constitutional separation of powers. The division is jointly defending this action with attorneys from the Agriculture and Health Division.
Hanford: Division attorneys represent the state in federal court in a challenge to Initiative 297, the Cleanup Priority Act, enacted by Washington voters in 2004. In June 2006, the federal district court found the law unconstitutional on a number of grounds. The division represents the state in its appeal from this decision to the Ninth Circuit Court of Appeals.
In early 2006, the division announced the settlement of another federal court action brought by the state against the United States Department of Energy (DOE) alleging deficiencies in the environmental analysis supporting DOE’s decision to bring low-level and mixed low-level waste to Hanford from other sites in the country. Under the settlement DOE agreed to conduct additional environmental analysis before taking steps to bring waste to Hanford.
Roadless Rule Litigation: In February 2006 Washington joined a case brought by California, Oregon and New Mexico challenging a 2005 United States Forest Service action repealing a 2001 rule that restricted development in roadless areas on forest lands. A September 2006 federal district court ruling accepted the states’ arguments and reinstated the 2001 rule. Further litigation and appeals are anticipated.
Governor’s Office & Department of Ecology Initiatives: Division attorneys continue to assist the Governor’s Office and Department of Ecology on several priority initiatives including: (1) cleaning up Puget Sound; (2) managing the state’s water; (3) reducing toxic threats; (4) improving environmental mitigation; and (5) developing responses to address climate change.
Back to top