Stormwater ruling puts restrictions on county

Judge says it must obey default guidelines during appeals process

By Stephanie Rice, Columbian Vancouver city government reporter

Published:

Updated: December 29, 2011, 5:46 PM

 

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.

Stephanie Rice: http://www.facebook.com/reporterrice; http://twitter.com/col_clarkgov; stephanie.rice@columbian.com.