Treating rainwater as a beneficial resource.

by Jeff Kray at Marten Law Group

Washington and some other states have started to manage precipitation and stormwater runoff as a beneficial resource, rather than treating it as a waste stream.

There are many ramifications to be considered in utilizing precipitation as a water source, including impacts to groundwater, impacts to surface water to which such runoff may be tributary, health concerns associated with a private water source, and regulatory compliance.

Kitsap lawmaker says Ecology overstepping its authority.

Rep. Jan Angel has sent letters this week to the state departments of Ecology and Commerce asking its directors to refrain from creating new shoreline policies and guidance.

The issue centers around which jurisdiction takes precedence in setting shoreline rules and buffers: the state’s Shoreline Management Act (SMA) or the Growth Management Act (GMA). GMA governs “critical areas” which the Department of Ecology contends should cover some shorelines with generally more restrictive rules.

Both laws have been in conflict and the subject of litigation involving Kitsap County’s shoreline buffer zones. However, Angel says the state Supreme Court ruled last year that the Shoreline Management Act is the governing jurisdiction for the state’s shorelines.

Now, she says, without legislative authority, the Department of Ecology has issued “interim guidance” and is developing new policies on how governments can deal with critical areas within the shorelines.

You may now use rainwater to water your garden.

The State of Washington has laid claim to every drop of water that falls from the sky. Until recently, if you wanted to use rainwater, even to water your own garden, a water right permit had to be obtained from Olympia. No more.

As of October 9, 2009, the Department of Ecology has applied common sense to clarify its policy…

The on-site storage and/or beneficial use of rooftop or guzzler collected rainwater is not subject to the permit process of RCW 90.03. If and when the department determines that rooftop or guzzler rainwater harvesting systems are likely to negatively affect instream values or existing water rights, local restrictions may be set in place to govern subsequent new systems. To qualify as rooftop collected rainwater, the roof collecting the rainwater must be part of a fixed structure above the ground with a primary purpose other than the collection of rainwater for beneficial use. A guzzler is a device used to catch and store rainwater to provide drinking water for wildlife, livestock or birds.

Homeowner scores win in bulkhead battle.

from Brian T. Hodges, Managing Attorney, Pacific Legal Foundation

The Washington Court of Appeals this week handed a major victory to a Lummi Island homeowner, represented by Pacific Legal Foundation attorneys, who has been blocked by county officials from protecting her home from shoreline erosion.

Vacating rulings by a trial court and by officials with Whatcom County, the Court of Appeals ordered that Victoria Luhrs be allowed to go back to trial court and demonstrate her contention that she needs a rock revetment to protect her home. If she can show this need, the appellate court held, then the county must permit her to build it immediately.

“Best available science” and the law.

by Dennis D. Reynolds, Land Use Attorney, Bainbridge Island

At the request of the Common Sense Alliance (“CSA”), I comment on the State of Washington Department of Ecology (“Ecology”) and its best available science (BAS).

Ecology has stated both in writing and orally to San Juan County officials and citizens that its compilation of science for wetland and marine buffers is “the” best available science. According to Ecology officials, its science has been “vindicated” by the Growth Management Hearings Board and by the courts. The agency has also stated that its science is “peer-reviewed”, so beyond reproach.

Property owners win appeal of Kitsap County critical areas ordinance.

from Brian T. Hodges, Managing Attorney, Pacific Legal Foundation

We just received a published Court of Appeals’ decision in Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board. This case involved the intersection of two state statutes, the Shoreline Management Act (SMA) and the Growth Management Act (GMA), chapters 90.58 and 36.70A RCW.

Both statutes direct local government to adopt development regulations that protect critical areas, but in 2003, Legislature amended the GMA to state that the “protection of critical areas … within shorelines of the state shall be accomplished only through the local government’s shoreline master program.” Engrossed Substitute H.B. 1933, 58th Leg., Reg. Sess. § 1(1) (Wash. 2003) (codified at RCW 36.70A.480(3)(a)).

This statutory turf war has actual impacts on the ground for property owners.

Bulkhead regulations in Puget Sound

from a presentation by Randy Carman, Washington Department of Fish and Wildlife, and Kathy Taylor, Washington Department of Ecology, at the Shoreline Armoring on Puget Sound Workshop held May 12-14th, 2009

The state of Washington has two main regulatory authorities for reviewing and permitting proposals to conduct armoring on Puget Sound shorelines. These authorities are carried out by the Washington Departments of Fish and Wildlife and Ecology.

The state Legislature gave the Washington Department of Fish and Wildlife (WDFW) the responsibility and authority to preserve, protect, and perpetuate fish and shellfish resources of the state.