Clark County’s rivers and streams will see less pollution in the years ahead due to a legal victory limiting the County’s discharge of stormwater pollution. Polluted stormwater harms salmon, contains toxics, and erodes streambanks. After Clark County refused to comply with statewide requirements to control the flow of the polluted runoff, Columbia Riverkeeper partnered with the Rosemere Neighborhood Association and the Northwest Environmental Defense Center to bring a legal challenge. Where was the Department of Ecology? Pressured by the County, Ecology signed an agreement that gave Clark County a special exemption around the statewide pollution rules. The U.S. District Court for the Western District of Washington found that Ecology’s exemption was illegal and ordered Clark County to reduce pollution and comply with the rules. Read the Court’s opinion here.
This victory sets important precedent that Ecology cannot carve special loopholes to pollution laws and that all Counties must do their part to keep our rivers clean. Citizen groups play a key role in enforcing the law when the agencies do not. Additional details are in the press release and newspaper stories below.
Riverkeeper wants to thank the Rosemere Neighborhood Association and Dvija Michael Bertish for taking the lead on this important victory. Dvija and Rosemere volunteers worked tirelessly for several years to identify the impacts of the polluted runoff. We also thank Janette Brimmer and Jan Hasselman at Earthjustice who represented the organizations in this challenge.
In the News
County keeps wasting time and money appealing stormwater regulations
October 29, 2012—
Clark County commissioners and local developers are chasing wild geese again, with the same dismal hunting prospects of Elmer Fudd in his pursuit of the wascally wabbit. Unfortunately, the county’s taxpayers are having to pay for all of the spent shells .County commissioners on Thursday took their twice-denied hunt for more-lenient stormwater rules to the Washington Supreme Court. Previously, county officials were told by the state Pollution Control Hearings Board that the county’s special deal with the state Department of Ecology failed to comply with federal and state clean water laws. Then, the county lost an appeal of that ruling at the Court of Appeals on Sept. 25.
Now, this costly quest has been pushed on to the state’s highest court. There’s no telling how much public money has been poured into this chase. Staff time is being spent on such things as researching and compiling the 20-page legal petition that was filed last week.
Commissioners obviously are being encouraged by local developers to extend this unrealistic search for preferential treatment on stormwater regulations. Namely, the Building Industry Association of Clark County has joined the county in filing the court cases. The builders claim that, not only is the required National Pollutant Discharge Elimination System (NPDES) permit overly stringent, it also needlessly drives up the cost of development. That second point might be partly true, but the big question is this: Should higher development costs be paid by developers (and extended to their customers) or by the public? As we’ve said all along, taxpayers already pay too much of the cost of growth. Expecting them to fork over extra bucks for tighter stormwater regulations is the wrong approach.
At first, the 2007 requirement of the state Department of Ecology seemed impractical: Developed land must drain stormwater as slowly as it did prior to Euro-American settlement. But on closer inspection, the county’s efforts to drag this thing out look even more misguided. Clark County is the only jurisdiction in Western Washington to appeal the state DOE ruling. And in the second of the county’s two court losses, all three judges on the Court of Appeals panel rejected all four of the county’s arguments.
Meanwhile, this is becoming doubly wasteful. On the remote chance that the county wins, officials then must find a way to pay for the stormwater program. As Stephanie Rice reported in a Thursday Columbian story, that program soon will run out of money.
County officials and local developers want to mitigate stormwater problems by making improvements at sites other than where development is occurring. But the state Pollution Control Hearings Board said that strategy was not based on science, and the Court of Appeals agreed.
The Rosemere Neighborhood Association, an environmental group, has pushed local officials to meet the NPDES requirements. Some day, that likely will happen. But not as long as the county keeps wasting time and money on this wild goose chase.
Link to the story: http://www.columbian.com/news/2012/oct/29/another-no-on-horizon/
A federal judge has issued a preliminary ruling that Clark County’s development standards appear to violate clean water laws.
The Associated Press, The Seattle Times
TACOMA, Wash. — A federal judge has issued a preliminary ruling that Clark County’s development standards appear to violate clean water laws.
The decision issued late Wednesday by U.S. District Court Judge Ronald B. Leighton means Clark County must comply with federal clean water laws to protect rivers and salmon threatened with extinction.
Stormwater runoff is a major source of pollution because it contains toxic metals, oil, grease, pesticides, herbicides and bacteria that runs off pavement into streams.
The ruling applies to development projects permitted or approved by the county on or after the court’s order while a related state court appeal is pending.
Judge says it must obey default guidelines during appeals process
By Stephanie Rice, The Columbian
A federal judge has issued an injunction against Clark County, ordering it to follow the state’s default stormwater guidelines while its development standards are under review by the state Court of Appeals.
The injunction, granted Wednesday by U.S. District Judge Ronald B. Leighton, was requested by plaintiffs the Rosemere Neighborhood Association, Columbia Riverkeeper and the Northwest Environmental Defense Center.
In 2010, the plaintiffs challenged the county’s plan for managing stormwater runoff to the state Pollution Control Hearings Board.
The county’s plan had been developed in a compromise with the Department of Ecology.
In January, the pollution board ruled the county’s plan violates state and federal laws designed to protect clean water.
The Board of Clark County Commissioners decided to file a challenge to the state Court of Appeals.
While the challenge is pending, Leighton’s order means that the county cannot rely upon its controversial stormwater runoff management plan. Instead, it must use the state’s default management plan, which requires that newly developed sites drain as slowly as they did prior to Euro-American settlement.
Under the county’s controversial plan, the developer has to ensure that on-site flow conditions do not change, with the county making up the difference between that and the presettlement standard by restoring flow conditions elsewhere in the same water resource inventory area.
Leighton made it clear that he’s leaving it up to the state Court of Appeals to rule on the merits of the legal challenge.
Kevin Gray, the county’s director of environmental services, said Thursday that the guidelines would apply only to new projects, not projects that have been fully permitted. He said he’ll need to consult with county attorneys before determining exactly how the standards will be applied, and that the county might seek clarification from Leighton.
The plaintiffs argue the county’s standards don’t go far enough to protect salmon.
“Many cities and counties in our state are working hard to clean up polluted waterways and now Clark County must finally do the same,” said Janette Brimmer, a plaintiffs’ attorney from Earthjustice. “The ruling recognizes that everyone needs to do their share to protect our precious streams, rivers and salmon, and that Clark County, like everyone else, must follow the law.”
Leighton ruled that the plaintiffs showed they were entitled to the injunction.
“It is in the public’s interest to protect the environment and enjoin the issuance of approvals and building permits for projects under what the (Pollution Control Hearings Board) has found to be inadequate standards,” Leighton wrote. “The public interest favors compliance with environmental laws.”
Stormwater runoff is federally regulated as a major source of water pollution; it contains toxic metals, oil, grease, pesticides, herbicides, bacteria and nutrients that run off buildings and pavement into fish-bearing streams. Failure to comply with regulations could result in the county being fined.
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