Court of Appeals Decision May Alter Deference to Ecology's Technical Expertise

Published Dec 12, 2012

Doll Mack Wells attorney Sarah Mack published an article in the October 2012 issue of the Western Water Law & Policy Reporter on a recent Court of Appeals decision that may herald greatly reduced deference to the technical expertise of the Department of Ecology. The Court of Appeals affirmed a PCHB decision rejecting Ecology’s modifications to a municipal stormwater general permit for Clark County. Ecology had determined that Clark County’s alternative stormwater control program would provide “equal or similar” protection to that specified in Ecology’s municipal permit. The PCHB, which hears appeals from Ecology decisions, concluded that the agency’s determination was not entitled to any deference.

In Rosemere Neighborhood Ass’n v. Ecology, while recognizing “that deference is due Ecology because of its technical and scientific expertise,” Division II of the Court of Appeals nevertheless affirmed – based on “expert testimony” and concerns expressed by other agencies – the PCHB’s disagreement with Ecology’s determination. Erosion of deference to Ecology’s technical expertise may have far-reaching implications in litigation over water quality and water rights in Washington.  Clark County has filed a petition for review with the Washington Supreme Court.

  • To read the WWLPR article in its entirety, click here.