Model Ordinance Explained

Ordinance Sections

Breakdown of Ordinance

The ordinance reflects a transformative approach to environmental protection by granting rights to ecosystems themselves. This aligns with emerging legal and philosophical perspectives that view nature as a stakeholder, deserving of protection not just for human benefit but for its intrinsic value.

Here’s a breakdown of the model ordinance, explaining each section and its reasoning

1. Rights of the Watershed

The Watershed possesses the rights to exist, regenerate, and flourish, which shall include the right to naturally recharge, the right to naturally flow, the right to water quality necessary to provide habitat for native plants and animals, the right to provide clean water, and the right to restoration. The Watershed shall also have the right to be free from activities or projects which violate those rights. 

This section declares that the watershed itself has inherent rights, not just the people who use or benefit from it. This is a significant departure from traditional environmental law, which focuses on human interests.

  • Right to exist, regenerate, and flourish: This establishes the watershed’s fundamental right to continue its natural processes.
  • Right to naturally recharge and flow: This protects groundwater replenishment and the natural course of rivers and streams.
  • Right to water quality necessary for habitat: This aims to maintain water purity sufficient for native plants and animals to thrive.
  • Right to provide clean water: This focuses on the watershed’s function as a source of clean water for native species and human use.
  • Right to restoration: This ensures a legal obligation to restore the watershed if damaged.
  • Right to be free from violating activities/projects: This is a crucial right, providing the basis for legal action against harmful activities.

This aims to give legal standing to the watershed itself, to protect the natural hydrological processes essential for ecological health. This reflects a shift toward recognizing nature’s inherent rights, beyond human interests. It argues that by granting legal rights to the watershed, it can be better protected from exploitation and degradation.

2. Prohibitions

It shall be unlawful for any person to violate any of the rights recognized by this Ordinance.

This section makes it illegal to violate any of the rights established in the previous section. This is a crucial enforcement mechanism, as it establishes clear legal consequences for actions that harm the watershed.

By making violations explicitly illegal, this ordinance holds individuals and organizations accountable for actions that harm the watershed. This provides the legal teeth to the rights declaration and serves as a deterrent. Without a prohibition, the rights would be merely symbolic.

3. Implementation and Enforcement

(1)  Enforcement by the Watershed.  The Watershed may enforce or defend the rights recognized by this Ordinance through an action brought by any person with legal standing in the Municipality in the name of the Watershed as the real party in interest, in any court of competent jurisdiction.
(2)  Damages and Fees.  Any person that violates any rights recognized by this Ordinance shall be liable for any damages caused to the Watershed as a result of that violation. Damages shall be measured by the cost of fully restoring the Watershed to its natural state before the violation, and shall be paid to the Municipality to be used exclusively for the full and complete restoration of the Watershed as affected by the violation. A prevailing plaintiff, in an enforcement action, shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.
(3) Duties and Obligations. The rights of the Watershed secured within this Ordinance shall not be interpreted to confer liabilities, duties, obligations, or responsibilities on the Watershed.
(4) Enforcement Actions and Burden of Proof. Where probable violations of the rights protected in this Ordinance are shown to exist, lack of full scientific certainty shall not be used as a reason for denying or postponing enforcement or defense of these rights.

This section outlines how the watershed’s rights can be enforced.

  • Key Feature: Allows legal action to be taken in the name of the watershed, which can be initiated by any person with legal standing in the city. This is a crucial element of “rights of nature” laws. It gives citizens the ability to act as advocates for the watershed.
  • Reasoning: This innovative approach gives the environment a legal voice through human advocates, ensuring protection even when direct governmental oversight might be lacking. This empowers citizens to act as guardians of the watershed’s rights, even if they are not directly harmed by a violation. It overcomes the traditional legal requirement of “standing,” which often limits who can bring environmental lawsuits.

This section specifies the consequences for violating the watershed’s rights.

  • Damages: Damages are measured by the cost of full restoration of the watershed.
  • Use of Funds: Damages are paid to the city but must be used exclusively for restoration.
  • Legal Costs: The prevailing plaintiff (the person bringing the action on behalf of the watershed) is entitled to recover all legal costs, including attorney’s fees.
  • Reasoning: This aims to deter violations and encourage accountability by imposing significant financial penalties and ensures that funds are used to repair the damage. The provision for legal costs makes it more feasible for citizens to bring enforcement actions.

Clarifies that the rights granted to the watershed do not impose responsibilities or liabilities on the watershed itself.

  • Reasoning: This clarifies that the watershed is the beneficiary of the rights, not an entity that can be held responsible for anything. It prevents misinterpretation that could legally burden or anthropomorphize the natural entity.

This section addresses the issue of scientific uncertainty.

  • Explanation: The ordinance does not necessitate scientific certainty to initiate legal action, allowing for the consideration of potential threats with credible evidence. This approach leverages the Precautionary Principle, a common strategy in environmental law that emerged from practices like Germany’s “Vorsorgeprinzip” in the 1970s, where actions are taken to prevent harm even without full scientific proof, as seen with the ban on certain chemicals. This principle helps protect communities from unforeseen environmental damage, as exemplified by the later discovery of “forever chemicals.”
  • Reasoning: This provision aids in timely protection of the environment by acknowledging the precautionary principle in law. This is important because environmental harm can be difficult to prove conclusively. By shifting the burden of proof to those potentially impacting the watershed, the ordinance encourages businesses to adopt practices that are environmentally friendly, especially beneficial for those in sectors like boating and eco-tourism which depend on a healthy ecosystem. This legal framework is not designed to promote unnecessary litigation but to ensure responsible stewardship, fostering a cooperative environment where both development and environmental health can coexist for future generations.

Read more about the Precautionary Principle, or the common environmental law concept of not requiring scientific certainty.

This section creates a strong enforcement mechanism, ensuring accountability and prioritizing restoration. It also prevents legal loopholes (e.g., delaying action due to inconclusive data) that could harm the watershed.

4. Authority

This Ordinance is adopted under the authority of the Municipal Code of the Municipality, pursuant to the authority provided to code cities in the Revised Code of Washington, and by the inherent right of the people of the Municipality to make laws which recognize and expand civil and environmental rights at the municipal level, under the authority as recognized by, but not limited to, Article I, Section 1 and Article I, Section 4 of the Washington State Constitution, and the 10th Amendment and 14th Amendment, Section 1 of the United States Constitution.

This section explains the legal basis for the ordinance.

It cites various sources, including:

  • Municipal code and state law.
  • Inherent right of the people to make laws.
  • Specific provisions of the Washington State Constitution and the U.S. Constitution.

This section aims to establish the legal legitimacy of the ordinance and anticipate potential legal challenges. The invocation of constitutional provisions is intended to strengthen the ordinance’s standing, ensuring it aligns with broader legal frameworks while asserting local environmental governance.

5. Preemption and Severability

(1) Preemption. This ordinance shall not be applicable to areas of law that have been validly preempted by state, federal, or tribal law.
(2) Severability. Should any section, subsection, paragraph, sentence, clause, or phrase of this Ordinance, or its application to any person, entity, or circumstance, be declared unconstitutional or otherwise invalid or unenforceable for any reason, or should any portion of this Ordinance be validly preempted by state or federal law or regulations, such decision or preemption shall not affect the validity of the remaining portions of this Ordinance or its application to other persons, entities, or circumstances.

This section acknowledges that the ordinance cannot override existing state, federal, or tribal law.

This ensures that if one part of the ordinance is found to be invalid, the rest will remain in effect.

These provisions are standard in legal documents. They address potential conflicts with other laws and ensure the core intent of the ordinance remains intact even if specific provisions are invalidated.

6. Definitions

(1) “Watershed” as used within this Ordinance, shall include [NAME River or other body] and the watersheds of the [NAME] and [NAME] River within the boundaries of the City of [CITY] in the State of Washington; and shall include, but not be limited to, the [LOCAL CREEKS AND BODIES OF WATER ], and any other wetlands, tributaries and contributors to the [NAME] Watershed.
(2) “Clean Water” means water that is free from any non-natural presence of substances, contaminants, noise, or pollutants in quantities that may pose actual or potential harm to human health or welfare, animals, fish, plant life, or water quality, or that may unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
(3) “Exist” as used within this Ordinance, shall mean that the Watershed has the capacity to naturally perform basic functions historically common to the Watershed.
(4) “Flourish” as used within this Ordinance, shall mean that the Watershed has the capacity to naturally prosper by vigorously growing and developing, which, in turn, allows it to robustly perform its basic functions.
(5) “Person” as used within this Ordinance, shall mean an individual, partnership, association, public or private corporation, city or other municipality, county, state, or federal agency.
(6) “Regenerate” as used within this Ordinance, shall mean that the Watershed has the capacity to regain its historically basic functions following a natural or manmade interference with those functions.

This section provides clear definitions of key terms used in the ordinance.

  • Watershed: Specifies the geographic and ecological scope of what is included in the watershed, including rivers, creeks, tributaries, and wetlands, ensuring comprehensive coverage.
  • Clean Water: Defines water quality standards that protect ecosystems and human use.
  • Exist: Clarifies what it means for the watershed to perform its natural functions.
  • Regenerate: Explains the watershed’s capacity to recover from disturbances.
  • Flourish: Defines the conditions for the watershed to thrive.
  • Person: Broadly defines entities subject to the ordinance, including individuals, nonprofit organizations, corporations, and government agencies.

Clear definitions are essential for avoiding ambiguity and ensuring that the ordinance is interpreted as intended.