State of Washington v. Wahkiakum County
In November 2014, the Washington State Court of Appeals held that a county ban on land application of Class B biosolids was unconstitutional. In 2001, Wahkiakum County in southwestern Washington State passed an ordinance banning land application of Class B biosolids. After many attempts to work with the County to find common ground, the Washington Department of Ecology filed suit in state court to overturn the Wahkiakum County ban. The state argued that a local ban on class B biosolids creates an irreconcilable conflict with the state program that sets standards for land application and issues site specific permits. In early 2013, the trial court upheld the ban. The Department of Ecology appealed the trial court ruling to the Washington State Court of Appeals.
On April 29, 2015, the Washington Supreme Court denied Wahkiakum County’s Petition for Review. The November 2014 Court of Appeals decision preempting the Class B ban remains the law of the state.
The Court of Appeals tested the County’s ordinance against three principles of conflict preemption to determine if the ban was unconstitutional: (1) does it prohibit what the state law permits, (2) does it thwart the legislative purpose of the statutory scheme, or (3) does it exercise power that the statutory scheme did not confer on local governments. The court held that the ordinance was unconstitutional under all three principles.
With regard to the first principle, the court held “that the County's ordinance prohibits what the state law permits because state law, and the corresponding Department regulations, create a comprehensive permitting scheme for the land application of class B biosolids.”
Moving to the second preemption principle, the court determined that the county ordinance irreconcilably conflicted with state law because it thwarted the legislature's purpose in enacting state law:
Specifically…the legislature intends that sewage waste be recycled and used for land application rather than be disposed of in a landfill or incinerated. Because the County's ordinance bans land application of all class B biosolids, which is the overwhelming majority of biosolids produced in Washington, it effectively prohibits land application of biosolids, especially land application of biosolids in farming and land reclamation. Moreover… if local governments have the power to ban land application of biosolids, land application of biosolids could be banned throughout the state, clearly thwarting the legislature's purpose of recycling biosolids through land application rather than landfill disposal or incineration. Thus, the County's ban on land application of class B biosolids does not just thwart the legislature's purpose to use biosolids to the maximum extent possible, it also thwarts the legislature' s purpose to prevent disposal of biosolids in landfills absent economic infeasibility.
Finally, the court held that the County's ordinance “clearly exercises power the legislature did not confer on local governments under the statutory scheme for management or disposal of biosolids.” And while the court acknowledged that the County may have the authority to further regulate land application of biosolids for compliance with other laws, it lacked the authority to completely ban land application when it conflicts with state law.
On May 30, 2014, NACWA jointly filed an amicus brief with the Northwest Biosolids Management Association (NBMA) and the Washington Association of Sewer and Water Agencies. The brief supported the Washington State biosolids regulatory program and practice of land application by showing how this ban overturns a unified biosolids rule and dismisses decades of research that demonstrate the safety and environmental benefits of well-run land application programs. It also provided a national perspective on how this ordinance, and other similar local efforts to ban land application, could have far-reaching implications.
NACWA applauds the court’s decision, which will provide strong binding precedent should any of Washington’s 39 counties or other local governments pass bans or extremely onerous requirements on biosolids land application. The published decision will also serve as powerful legal precedent for clean water utilities elsewhere in the nation that may have to fight similar land application bans. The court’s unequivocal language about the danger and illegality of local bans thwarting state and federal laws designed to encourage land application is especially important and can be valuable to land application proponents across the country.
NACWA has expressed longstanding opposition to biosolids land application bans, especially those passed by local counties that could negatively impact municipal clean water utilities in neighboring jurisdictions. NACWA is committed to preserving the ability of municipalities to choose the method of biosolids management that works best for their communities, including the option of land application. NACWA also has a strong interest in emphasizing the primacy of science-based federal and state regulation of biosolids, as opposed to misguided local efforts to ban land application as occurred in this case.
NACWA has participated in similar state litigation to oppose local land application bans, including in the recent Kern County case in California, and will continue to actively engage in the fight against land application bans across the country.
Documents ( format)
- Notice of Appeal/Trial Court Decision, Case No. 44700-2-II, Wash. Ct. App., 03/11/2013
- Washington State Opening Brief, Case No. 44700-2-II, Wash. Ct. App., 07/23/2013
- Wahkiakum County brief, Case No. 44700-2-II, Wash. Ct. App., 09/23/2013
- Washington State Reply Brief, Case No. 44700-2-II, Wash. Ct. App., 10/23/2013
- Lewis County Amicus Brief, Case No. 44700-2-II, Wash. Ct. App., 10/24/20131
- NACWA et al. amicus brief, Case No. 44700-2-II, Wash. Ct. App., 05/30/2014
- Farm Interest Amicus Brief, Case No. 44700-2-II, Wash. Ct. App., 05/30/2014
- Wahkiakum County Reply to NACWA et al.’s Motion to File amicus brief, Case No. 44700-2-II, Wash. Ct. App., 06/02/2014
- Opinion, Wash. Ct. App., Dept. of Ecology v. Wahkiakum County, Case No. 44700-2-II, 11/04/2014
- Order Denying Review, Wash. Ct. App., Dept. of Ecology v. Wahkiakum County, Case No. 44700-2-II, 04/29/2015