Environmental & Land Use Department Update
Summer 2001
New Water Rights Legislation
Intended to Facilitate Water Transfers
By Adam W. Gravley
Engrossed Substitute House Bill (ESHB)
1832 relating to water resources
management is the first major amendment
to state water rights law in several years. It
contains a series of modest changes, many
of which are intended to make water rights
transfers easier and faster to obtain.
Although ESHB 1832 is not sweeping
reform and leaves the most difficult issues
for future sessions, it contains many provisions that are of
interest to businesses, local governments, and individuals who
have or seek water rights.
Governor Locke proposed the bill as the first step in a
three-year plan to reform water resources law to address
critical water issues facing people and fish. The Governor set
out three guiding principles — to meet the needs of a growing
population and a healthy economy statewide; to meet the
needs of fish and healthy watersheds statewide; and to
advance these two principles together, in increments over
time. As the first step, ESHB 1832 was intended to enact a
limited range of measures to respond to the drought and to
facilitate water transfers.
The leading aspect of the new legislation is the “two lines”
provision to address the permitting backlog. The state
currently has a backlog of roughly 7,500 water rights
applications that includes requests for new permits and
transfers of existing rights. Generally, all applications wait in
the same line to be decided in chronological order, with
limited opportunities for priority processing. To expedite
decisions on transfer applications, ESHB 1832 separates the
stack of pending applications into two lines and allows
decisions on transfers to be made independently of those for
new permits. The wait for a transfer is expected to decline
significantly in most areas.
Remedial amendments to the water conservancy board
statutes were adopted. In 1997, the legislature authorized
the formation of local water conservancy boards to make
conditional decisions on changes and transfers of existing
water rights, in part to address the application backlog.
Ecology promulgated rules to implement this legislation, and
last year a superior court struck down part of the rules dealing
with the jurisdiction of conservancy boards. ESHB 1832
clarifies that conservancy boards can hear the same sort of
change and transfer applications that Ecology can. The
legislation also sets out procedural and conflict of interest
rules to increase the boards’ accountability.
Some transfers of “family farm” water rights to other uses
are allowed. The Family Farm Water Act was adopted by voter
initiative in 1977 to secure water for the family farm, then
defined as no more then 2,000 acres of irrigated land
controlled by a person who owned no more than 2,000
irrigated acres. Ecology had interpreted the Act not to allow
the transfer of a family farm water right to a different purpose,
e.g., for municipal or industrial use. ESHB 1832 allows
transfer of a family farm water right to any other beneficial
use in an urban area within the same water resource inventory
area (WRIA), as defined by Ecology. It also allows transfer of
a family farm water right under a lease to any other beneficial
use within the same WRIA. Also, the acreage limit of a family
farm increases to 6,000 acres.
ESHB 1832 increases funding opportunities for watershed
planning and makes other amendments to the watershed
planning act in chapter 90.82 RCW. To advance watershed
planning units’ ability to set or amend instream flows, it also
provides that Ecology shall complete by October 1, 2001, a
final nonproject environmental impact statement that
evaluates methodologies for determining stream flows “to
meet the alternative goals of maintaining, preserving, or
Continued on Page 5
Inside This Issue:
New MTCA Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Constitutional Challenges to Washington’s Model Toxics Control Act . . . . . . . .4
Environmental & Land Use Department Update
Page 2
New Model Toxics Control Act (MTCA) Rules
By John C. Bjorkman
After several years of
study and negotiated rule
making, the Washington
Department of Ecology
(Ecology) has finalized its
amendments to the
Model Toxics Control Act
(MTCA) rules. These
important changes primarily clarify
remediation approaches Ecology has been
using in recent years, make the rules more
user-friendly, and codify Ecology’s trend
toward allowing the increased use of sitespecific information to set cleanup
standards.
There is also some controversy over
whether the revised rules are appropriate or
workable in certain areas, such as lighter
petroleum compounds and ecological risk
assessment. Ecology is in the process of
developing guidance to address some of
these concerns.
Remedy Selection
Ecology has applied some new terminology
to the answers to old problems. Method A
remains the procedure for setting cleanup
levels at cleanup sites where there are few
hazardous substances. Numerical tables
set out the cleanup levels that Ecology
xylene, and lead have all become less
stringent.
Method B, now referred to as the
“universal” method for determining
cleanup levels, applies at most sites. The
regulations create a “standard” and
“modified” Method B cleanup approach
that help clarify when additional
information will allow a deviation from the
default assumptions used to set cleanup
levels. The standard Method B approach
uses the default assumptions while the
modified approach allows the use of the
quantitative risk assessment process
described below to set cleanup levels.
Method C is typically appropriate where
the cleanup levels developed under
Methods A and B are impossible to
achieve. Like Method B, the regulations
divide Method C into a “standard” and
“modified” approach. While the standard
method again uses default parameters to
set cleanup levels, the modified Method C
approach allows the use of site-specific
and chemical-specific data to change the
default parameters, as well as quantitative
risk assessment analysis. Method C
continues to require the use of institutional
controls restricting future use of the
property.
... natural attenuation and natural biological degradation
of contaminants continue to be appropriate
remedial actions at certain sites.
believes are consistent with applicable
state and federal laws. The rules continue
to caution against misuse of Method A
tables.
Based on the latest scientific data, the
amendments make a number of changes to
the Method A tables, and practitioners and
responsible parties will want to review
these carefully. As noted above, there is
concern that the more stringent cleanup
levels for benzene and gasoline range
organics may impede cleanups. On the
other hand, Method A groundwater
cleanup levels for ethylbenzene, toluene,
The rules add several new terms,
although the concepts will not be new to
those familiar with how Ecology has
applied the pre-amendment rules.
“Remediation level” is the new term
applied to those levels of contamination
above which a site’s cleanup standards
require the responsible party to perform a
specified cleanup action component.
Some past cleanups used the term ‘action
level.’
A remediation level corresponds to the
actual cleanup standard, and may differ
from a cleanup level. A cleanup level for
soil, for example, is the concentration of a
hazardous substance above which some
remedial action is required (e.g., treatment,
capping, or institutional controls), while a
remediation level is the site-specific
concentration that will be met on defined
areas of a site as a result of the cleanup
action. A remediation level must be
protective of human health and the
environment and meet the other
requirements associated with cleanup
standards and selection of remedy.
WAC 173-340-355 and 360.
The rules continue the concept that a
remedy should be permanent to the extent
practicable but now provide additional
clarification regarding the factors Ecology
will consider in reviewing whether the cost
of a cleanup action is disproportionate to
its benefit. WAC 173-340-360(3)(e)
and (f).
The rules recognize that natural
attenuation and natural biological
degradation of contaminants continue to be
appropriate remedial actions at certain
sites. WAC 173-340-370(7). Further, the
rules allow for the use of dilution and
dispersion as an appropriate remedial
action where the cost of more active
remedial measures “grossly exceed” the
incremental degree of benefit from active
remediation. WAC 173-340-360(2)(g).
Previously, the rules required that a
cleanup could not rely primarily on dilution
and dispersion if active remedial measures
were technically possible.
Ecology also changed the method by
which a responsible party determines what
level of soil cleanup is protective of ground
water. Previously, the rule assumed a soil
cleanup level of 100 times the ground
water cleanup level to be protective. The
MTCA Science Advisory Board, a fivemember group established pursuant to
RCW 70.105D.030(4) to advise the
Department of Ecology on scientific issues,
recommended an amendment to this
provision to account for a variety of
technical methods for demonstrating what
concentrations of specific contaminants at
a particular site are protective of ground
water. WAC 173-340-747.
Environmental & Land Use Department Update
Risk Assessments
Petroleum cleanups
The amendments to WAC 173-340-708
clarify how Ecology will treat the use of
risk assessments in the modified Method
B and C approaches. Generally, the rules
continue the previous use of “reasonable
maximum exposure levels.” The parties
performing the cleanup will still set
cleanup levels based upon the highest
exposure that is reasonably expected to
occur at a site. The rules now allow for
greater flexibility in using site-specific data
to demonstrate that a different cleanup
level provides the required level of
protection of human health and the
environment. For example, where a clay
cap covers contamination at a commercial
site, the reasonable maximum exposure
level may change from a child living on
the site, to a worker and a child trespasser,
and thus potentially result in less stringent
cleanup levels based upon the lower
potential exposure.
The rules also now provide specific
examples of exposure parameters that may
be site-dependent. While factors that are
primarily a function of human behavior,
such as inhalation rate, drinking water
ingestion rate, etc. will not vary from site
to site, the party performing the cleanup
and risk assessment may be able to
demonstrate that changes are appropriate
to such parameters as contaminant
leaching variables and various chemicalspecific factors such as inhalation
absorption percentages. Further, where
the responsible parties propose engineered
or institutional controls for a site, default
parameters that define the frequency,
duration, and extent of exposure may
change.
The revised rules provide more detailed
guidelines for Ecology to apply, and
responsible parties to meet, in attempting
to set cleanup levels utilizing new
scientific information. These include such
requirements as widespread acceptance in
the scientific community, use of standard
testing methodology, use of conservative
assumptions, and adequacy of quality
assurance and quality control. WAC 173340-702(15) and (16).
In the past, parties typically used the
Method A tables for petroleum cleanups
because information on the risks
associated with many petroleum
compounds was not well known. With the
implementation of its Interim
Interpretative and Policy Statement Cleanup of Total Petroleum Hydrocarbons
(ECY 97-600, January 1997), Ecology
provided guidance on a risk-based
methodology for assessing cleanup levels
at sites with heavy weathered petroleum,
such as old oil and diesel releases. The
Interim TPH policy also provided a wider
Method A soil cleanup
levels from diesel range
organics, including heavy
oils, are increasing from
200 ppm to 2,000 ppm.
Page 3
the regulations. Tier 2 utilizes more sitespecific information for identified exposure
pathways. Tier 3 allows for the
incorporation of new scientific information
such as modified fate and transport
models.
Parties may still use Method A cleanup
levels for simple cleanups. The soil
cleanup levels for DROs, including heavy
oils, are increasing from 200 ppm to
2,000 ppm. Mineral oil cleanup levels
will increase from 200 ppm to 4,000
ppm. The cleanup levels for GROs,
however, will decline to 30 ppm (or 100
ppm if no benzene is present). Ecology
believes that each of these cleanup levels
reflects current knowledge about the
potential for migration of these
contaminants to ground water.
Table 740-1. As noted above, Ecology is
working on guidance that might allow
some variation in cleanup levels for GROs
based on site-specific assumptions that
determine the cleanup level.
Financial Assurances
range of land use considerations
(residential, commercial, and industrial)
than the Method A tables.
The amendments outlined at WAC
173-340-700(8) continue the concepts
Ecology began with its Interim Total
Petroleum Hydrocarbons (TPH) Policy.
Rather than evaluating the complex array
of contaminants typically present at a
petroleum contamination site, parties will
now group contaminants into surrogate
compounds including “gasoline range
organics (GROs),” “diesel range organics
(DROs),” heavy oils, and non-PCB mineral
oils.
Further, Methods B and C are now
tiered in order to make the rules easier to
use and more clearly identify the various
approaches a responsible party may use in
developing cleanup levels. The regulations
do not require a party to use the tiers
sequentially and one tier may be used for
one surrogate contaminant group and a
second tier for another. Setting Method B
and C cleanup levels under Tier 1 uses the
standard methods and formulas set out in
The rules now provide additional
requirements for financial assurances on
institutional or engineered controls for
Method B and C cleanups. While Ecology
continues to require financial assurances
sufficient to cover future operation and
maintenance, including compliance
monitoring and corrective measures, the
rules now establish alternate means for
providing the assurances similar to the
Federal financial assurance requirements
under CERCLA and the state RCRA
program. ■
Environmental and Land Use Department
Seattle
johnb@prestongates.com
Environmental & Land Use Department Update
Constitutional Challenges to
Washington’s Model Toxics Control Act
By James A. Goeke
The Washington State
Supreme Court will
soon decide whether
the Model Toxics
Control Act (“MTCA”)
is unconstitutional
under the “takings”
and due process
clauses of the United
States Constitution. In
State of Washington Department of
Ecology v. Asarco, No. 69406-1, the
Court will rule on Ecology’s appeal of a
Thurston County Superior Court decision
holding MTCA unconstitutional as applied
to Asarco for the cleanup of its historic
Everett lead smelter.
Asarco’s Historical Actions
Prior to World War I, Asarco owned and
operated a lead smelter and arsenic
recovery plant in northeast Everett.
Asarco smelted and refined lead until
1908 and conducted arsenic recovery
until 1912. In 1914, Asarco dismantled
its production facilities and by 1936 had
sold all of its 44-acre holdings including
the seven acre former smelter site. In the
following years, the smelter site and the
remainder of Asarco’s 44-acres of
property were developed for residential
and commercial purposes.
MTCA and the Cleanup
In 1990, shortly after MTCA became law,
the Department of Ecology confirmed
there were elevated levels of lead and
arsenic contaminating the seven acre
former smelter operating property, the
remainder of Asarco’s 44-acre historic
holdings, and a larger 642 acre area in
northeast Everett downwind from Asarco’s
historic smelter. In 1991, Ecology
identified Asarco as a PLP (potentially
liable party) and for the next six years the
parties negotiated and performed a
Remedial Investigation and Feasibility
Study for the upland portion of the Asarco
smelter site. Asarco’s preliminary work
included the repurchase of the seven
acres of property on which its former
smelter and recovery plant sat. These
seven acres were the most highly
contaminated property in the smelter site.
Asarco’s Lawsuit
When Ecology indicated it would impose
a soil cleanup standard based on a 1-ina-million cancer risk potential, resulting
in a cleanup estimated to cost $78
million, Asarco sued Ecology in Thurston
County Superior Court. Asarco alleged
the retroactive application of MTCA to its
historic actions in northeast Everett
violated both the due process clause of
the United States Constitution as well as
constituted a takings without just
compensation.
Asarco crafted its lawsuit to exclude
the seven highly contaminated acres it
had repurchased in the 1990s. Instead,
Asarco’s constitutional challenge applied
only to the remaining 37 acres it
historically owned and the 642 acres that
was downwind of its former smelter
operations.
The Trial Court’s Decision
Judge Tabor identified three issues for
trial: (1) whether retroactive liability in
this case was severe or patently unfair;
(2) whether Asarco could have reasonably
anticipated liability for its actions
between 1904 and 1936; and,
(3) whether imposition of liability against
Asarco was disproportionate to the actions
for which it was being held liable.
Following a bench trial in December
1999, Judge Tabor held that the large
potential liability ($78 million) and the
high degree of retroactivity (over 50
years) strongly suggested Ecology’s
application of MTCA to Asarco was unfair
and a due process and takings violation.
While the Court held Asarco caused 30%
of the air emissions that contaminated
northeast Everett, it found Ecology’s
attempt to hold Asarco liable for 100% of
the cleanup to be disproportionate to that
conduct. Further, the Court held that
Asarco could not, at the time, have
anticipated a number of important factors
on which its liability rested, including the
threat posed by chronic ingestion of soil
with relatively low arsenic contamination
and modern risk assessment analysis.
Thus, Asarco could not have adjusted its
behavior to avoid an anticipated liability.
Applying these findings, Judge Tabor
held Asarco liable for the cleanup of the
44 acres it once owned, but found
unconstitutional the attempt to impose
MTCA liability on Asarco for the
remaining 642-acre downwind area.
The Appeal
On appeal, Ecology argued the trial court
misapplied the United States’ Supreme
Court’s prior due process and takings
precedents. Due process requires only
that the government find a rational
connection between the regulation and
the regulated conduct, even where the
regulation applies retroactively to past
conduct. Ecology argued that MTCA
meets that standard. Further, the United
States Supreme Court’s recent decision in
Eastern Enterprises v. Apfel was only a
plurality opinion and does not reflect
binding precedent for holding government
regulation to be a takings without just
compensation. In any event, Ecology
argues that it is not patently unfair to
hold Asarco liable for the entire cost of
the cleanup when the Court found it
caused 30% of the total contamination
and never introduced any evidence that it
was being asked to cleanup the
contamination caused by the prior
operator of the smelter. Further, the 50
year reach-back is no greater than other
cases the United States Supreme Court
has upheld.
Asarco challenged Ecology’s distinct
due process and takings analyses and
instead focused on a unified theory of
constitutionality for retroactive legislation,
much as the trial court did. In response
to arguments by many amicus curiae that
the trial court’s decision upsets the
remedial goals underlying MTCA —
expeditious cleanups without the cost and
delay of litigation — Asarco took pains to
note it did not bring a “facial” challenge
to the statute per se, but an “as applied”
challenge limited to the unique facts of
its case.
There are several ways the Supreme
Court could avoid the Constitutional
questions altogether. Ecology has
strongly challenged the trial court’s
Continued on Page 5
Page 5
New Water Rights Legislation (cont’d from page 1)
enhancing instream resources.” Ecology
is already working on development of this
programmatic EIS.
The only municipal feature of the
legislation is a public utility tax deduction
for 75% of amounts spent by a municipal
water utility to implement approved
elements of a water conservation plan.
Finally, ESHB 1832 amends the trust
water rights statutes to make it easier to
donate water rights to the trust and to
provide procedures for leasing water to
the trust.
In a separate bill unanimously passed
by the Legislature and approved by the
Governor, strict relinquishment rules were
eased for irrigation water rights.
Substitute Senate Bill (SSB) 5910
expanded the list of “sufficient causes”
for nonuse of water in RCW 90.14.140.
Generally, nonuse of water for a period of
five consecutive years results in loss of
the water right (or the portion not used).
This five-year “use it or lose it” law
has been applied literally by the courts,
with some harsh results. For example,
the trial court in the Yakima River surface
water rights adjudication issued a
preliminary ruling that an irrigation
district had relinquished about 10% of its
perfected water right because of reduced
water use during a stretch of wet weather
in the 1980s. The court noted the
“troubling consequences” of the
relinquishment statute that mandates a
partial loss of rights if “five consecutive
wet and cool years” cause reduced
irrigation demand.
SSB 5910 addresses this problem by
providing that temporarily reduced water
need for irrigation use as a result of
“varying weather conditions” does not
subject a water right to relinquishment,
so long as the farmer’s diversion and
delivery equipment are maintained.
SSB 5910 also relieves several other
voluntary water reduction actions from the
risk of water rights loss, including crop
rotation and authorized water
conservation measures.
While SSB 5910’s changes to the
relinquishment law apply only to irrigation
water rights, they have indirect benefit for
municipal and business organizations.
Strict application of the use it or lose it
rule had encouraged maximum water use
beyond need. By sheltering water saving
activities from loss of rights, more water
could be available in the hydrologic
system for people and fish.
In addition, transfer of existing water
rights is increasingly necessary because
new water rights are largely unavailable.
Relinquishment issues frequently arise in
due diligence investigations of water
rights proposed for transfer. Municipal
and business entities that seek to transfer
irrigation water rights to new uses may
find the provisions of SSB 5910 helpful
in confirming water right validity.
Together with the other changes to
water rights transfer rules in ESHB 1832,
as a general rule water rights transfers
should become modestly easier to
accomplish.
Next year, the legislature will consider
more fundamental changes to Water
Rights law. The Governor identified three
key issues to address in legislation next
year—instream flows and other fish
needs; water needs of growing
communities; and outdated “use it or lose
it” relinquishment fixing rules, to
incentivize water conservation. In the
interim, the Governor has directed
Ecology to hold off on certain actions
adverse to municipal water suppliers,
including suspension of a controversial
rulemaking. Municipalities, businesses
and individuals with water rights interests
should watch carefully the development
of new legislation in the coming year. ■
Environmental and Land Use Department
Seattle
adamg@prestongates.com
Constitutional Challenges (cont’d from page 4)
jurisdiction to decide Asarco’s claims:
MTCA contains statutory limits on the
timing of judicial review and the timing of
Asarco’s Constitutional challenge before a
final cleanup decision is made.
Further, while Ecology did not press
the issue in its appeal, several amicus
curiae have argued that Asarco’s voluntary
decision to repurchase the 7-acre
historical plant site renders it a “current”
owner of a portion of the facility.
Therefore, the trial court’s holding that
retroactive application of the law to
Asarco’s historical conduct was
unnecessary.
A decision from the Washington State
Supreme Court affirming the trial court
could have a significant impact on MTCA
litigation involving the state’s industrial
core, harbors, and other areas with
longstanding human impact. The
availability of significant new
constitutional challenges to the
imposition of MTCA liability for historical
operations could displace significant
cleanup costs onto the public or other
more recent owners and operators.
The parties argued the case before the
Washington Supreme Court on May 31,
2001, and a decision is expected later
this year. ■
Attorneys at Preston Gates & Ellis LLP are
representing amicus curiae parties in the
Ecology v. Asarco action. If you have any
questions about the case, please call Ken
Weiner (206) 467-7344, John Bjorkman
(206) 224-7311, or James Goeke (206)
224-7254.
Environmental and Land Use Department
Seattle
kenw@prestongates.com
johnb@prestongates.com
jgoeke@prestongates.com
701 Fifth Avenue, Suite 5000
Seattle, WA 98104-7078
701 Fifth Avenue,
Suite 5000
Seattle, WA 98104
Tel: (206) 623-7580
Fax: (206) 623-7022
www.prestongates.com
ANCHORAGE
HOW TO REACH US
COEUR D’ALENE
HONG KONG
LOS ANGELES
ORANGE COUNTY
PALO ALTO
PORTLAND
SAN FRANCISCO
If you would like more information about these or other Environmental and Land Use
(ELUD) issues, or have a suggestion for a future article, please contact the authors,
Update editor John Bjorkman, johnb@prestongates.com or ELUD chair Ross
Macfarlane, rossm@prestongates.com, or call (206) 623-7580.
If you would like to add someone to our mailing list or update your mailing information,
please contact our Mailings Coordinator, Brenda McDaniels at
bmcdaniels@prestongates.com or (206) 623-7580 ext. 2527.
This newsletter can also be found at www.prestongates.com
SEATTLE
SPOKANE
WASHINGTON DC
DISCLAIMER
This newsletter provides general information about Environmental and Land Use issues. It is not a legal opinion or legal advice.
Readers should confer with appropriate legal counsel on the application of the law to their own situations. Entire contents copyright
© 2001 by Preston Gates & Ellis LLP. Reproduction of this newsletter in whole or in part without written permission is prohibited.
Printed on recycled paper.