Northwest Real Estate Law Blog : Northwest Real Estate Lawyer & Attorney : Davis Wright Tremaine Law Firm : Land Use, Development, Commercial Property : Seattle, Portland, Alaska, Washington, Oregon

If you have a water right issued by the Washington Department of Ecology, you may not think very much about whether it is called a water right “permit” or a water right “certificate.” Permit, certificate, isn’t it the same?

Truth be told – No, these documents are not the same, and may be treated very differently under the law, particularly when it comes to applying to Ecology for permission to make changes to the water right.

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Authored by:  Craig Gannett, Lauren Giles, and Clayton P. Graham

On May 27, the Washington Department of Ecology (“Ecology”) released draft Guidance regarding the analysis of climate change impacts under Washington’s State Environmental Policy Act ("SEPA"). The Guidance, which will be open for comment until June 25, proposes extensive analysis of both direct and indirect greenhouse gas ("GHG") emissions potentially resulting from government actions covered under SEPA. Among the government actions that are subject to SEPA’s requirements are local governments’ issuance of land use and construction permits for many types of projects, especially commercial, industrial, or larger residential developments. The Guidance also describes potential mitigation measures that project proponents may be required to undertake. Given the broad scope of the Guidance, it is essential that owners and developers of real estate, as well as any business or institution with expansion plans, become familiar with these proposed requirements.

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In a move decried by many environmentalist groups, the Interior Department finalized a rule which changes the way government agencies administer and comply with the Endangered Species Act (ESA). This new rule allows agencies to decline a formal consultation (with NOAA or the US Fish and Wildlife Service) if the agency determines that the direct and indirect effects of its actions are not anticipated to lead to a taking of an endangered species, and where other specific requirements are met. (The final rule, as promulgated, and the explanation of the same are linked here. The Washington Post quoted Interior Secretary Dirk Kempthorne calling the move “‘a clarification’ he considered essential in order to narrow the law’s reach.” While some see this rule as a way to make government agencies’ ESA compliance more efficient, others believe it improperly weakens species and habitat protections under the ESA. The proper scope of ESA protections is sure to be a hot button issue as the Federal government transitions from the Bush to an Obama administration.

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