In a big win for NWEA, U.S. District Court Judge John C. Coughenour gave a green light to NWEA’s lawsuit to protect Puget Sound from polluted runoff. The case is against two federal agencies for their failure to force Washington State to control polluted runoff in the state’s coastal watersheds, including Puget Sound. The federal agencies had sought a quick end to the case.
Filed in December 2016, NWEA’s lawsuit asks the court to force the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA) to impose Congressionally-mandated funding cuts on the Washington Department of Ecology for failing to comply with a law that requires the state to protect coastal water quality and the Clean Water Act. The case focuses on Ecology’s failure to use state law to control runoff pollution from so-called nonpoint sources such as farming, logging, dairy operations, and on-site septic systems.
This case is similar to NWEA’s 2009 lawsuit in Oregon that was focused on the state’s woefully inadequate logging practices and filed under the federal Coastal Zone Act Reauthorization Amendments (“CZARA”). NWEA settled that case but when Oregon refused to carry out its part of the agreement, the federal agencies disapproved Oregon’s program and cut the state’s annual funding by $1.2 million. Since then, Oregon, which became the first and only state to have its coastal nonpoint pollution program disapproved and to lose federal funds, recently made some improvements to its logging practices.
Unlike NWEA’s Oregon CZARA case, the Washington lawsuit involves a total of three federal laws: the Clean Water Act (CWA), CZARA, and the Endangered Species Act (ESA). It is this combination that puts approximately $3.5 million in annual federal aid to the state in jeopardy.
This is how it works. The Washington Department of Ecology receives an average of $3 million each year from EPA to support its nonpoint source program through the Clean Water Act and another $2 million annually for its coastal zone management program from NOAA through the Coastal Zone Management Act (CZMA). CZARA mandates a 30 percent cut in both of these two income streams for states that have failed to obtain approval of their coastal runoff program, such as Washington. In addition, NWEA’s lawsuit also separately seeks a 100 percent funding cut to the Clean Water Act funds.
The federal government had moved to dismiss NWEA’s lawsuit. In his order, Judge Coughenour ruled that, under CZARA, EPA and NOAA “have not finally approved Washington’s Coastal Nonpoint Program, while awarding upwards of $83 million in Program Assistance Grants to Washington through 2016,” concluding that “the agencies have failed to meet their statutory obligation [to reduce the funding].”
NWEA’s Clean Water Act claims represent the first time that an environmental group has taken EPA to court over its failure to follow the law with regard to the CWA nonpoint source program, known as Section 319. As written, the statute establishes a quid pro quo—states must meet certain requirements and, in exchange, EPA provides funding. In reality, EPA has found that it has been far more convenient to treat this funding source as a blank check, handing over the money without requiring the state to comply with the Clean Water Act. In his order, the court found that Ecology’s 2015 update to its nonpoint source program, first approved in 1989, “is subject to the same standards as the original program—those articulated by CWA Section 319.” He also found that NWEA could challenge EPA’s annual determinations that Ecology has made “satisfactory progress.”
Last, the court’s order found that EPA maintained enough discretion in the way that it evaluated and provided funding to Ecology’s nonpoint source program that it was required to consult with the expert fish and wildlife agencies under the Endangered Species Act.
NWEA is represented in this case by Paul Kampmeier of Kampmeier & Knutsen (Seattle) and Allison LaPlante of the Earthrise Law Center at Lewis & Clark Law School (Portland).
WA CZARA Order on Motion to Dismiss News Release 80.38 KB 438 downloads
In a big win for NWEA, U.S. District Court Judge John C. Coughenour gave a green...