Judge refuses stormwater bond

County had asked for money in case it does work that isn't required




The federal judge who ordered Clark County to follow the state’s default method for handling polluted runoff dealt the county another blow last week.

U.S. District Judge Ronald B. Leighton denied the county’s request for a bond, meaning that if the county eventually wins in court, it won’t be reimbursed for the additional work required by the injunction.

After Leighton’s Dec. 28 injunction, which said the county must follow the state’s rule that newly developed land drain as slowly as it did prior to Euro-American settlement, the county asked that the plaintiffs post a $1.1 million bond so the county can be paid if the county eventually wins in the state courts.

On Wednesday, Leighton said no.

Acknowledging he has the authority to require the plaintiffs to post a bond, Leighton wrote in a two-page order that he also has the discretion to deny a bond when requiring one would “effectively deny access to judicial review.”

The plaintiffs — Rosemere Neighborhood Association, Columbia Riverkeeper and the Northwest Environmental Defense Center — don’t have the ability to post a bond, the judge wrote.

“Here, Plaintiff has little or no means to post a substantial bond. The litigation seeks to enforce provisions of the Clean Water Act, and, as such, is in the public interest. Further, Plaintiffs have demonstrated a likelihood of success on the merits, given the indications of the Pollution Control Hearings Board,” he wrote.

Bronson Potter, the county’s chief civil deputy prosecutor, said the county’s request reflected the cost of staff time needed to do additional review of development applications.

He said bonds are allowed when a judge requires additional work before a final ruling has been made.

“So who loses if, at the end of the day, the (county’s plan) was valid?” he asked.

The county’s struggle over the stormwater rule dates to 2007, when the state Department of Ecology made it a requirement.

First, commissioners adopted a different ordinance and were put on notice by the state they were in violation of their National Pollutant Discharge Elimination System permit. Commissioners compromised and adopted a new plan that said the developer can’t make runoff any worse, and the county will make up the difference by making off-site watershed improvements at public expense.

In 2010, the plaintiffs challenged the county’s plan to the state Pollution Control Hearings Board.

The pollution board ruled the county’s plan doesn’t provide equal protection to waterways.

County commissioners appealed the ruling. The state Court of Appeals will hear oral arguments this year, but no dates have been set.

The county has been careful not to violate the injunction, as penalties of up to $37,500 a day can be imposed under the federal Clean Water Act.

The federal government regulates runoff, a major source of water pollution containing toxic metals, oil, grease, pesticides, herbicides and bacteria that run off buildings and pavement into fish-bearing streams.

Dvija Michael Bertish of the Rosemere Neighborhood Association said the plaintiffs expected the bond ruling to go in their favor.

“Clark County’s request for a modified bond of $1.1 million was absurd and shows how out of touch the county is in this process. We have consistently prevailed throughout these cases, and Judge Leighton wrote that we are likely to continue to prevail on the merits. The rulings support our position that Clark County wasn’t managing its stormwater as it should, and yet the county insists on litigation rather than settlement,” Bertish wrote in an email.

He referenced Commissioner Tom Mielke’s speech at the March 31 Clark County GOP convention — Mielke cited the legal fight over stormwater as an accomplishment — and Commissioner Marc Boldt’s Feb. 2 State of the County address. Boldt said the state needs to set environmental goals, “get out of the way” and let local governments figure the best way to achieve the goals.

“Politics won’t do anything to clean the water,” Bertish wrote.

More than 80 counties and cities in western Washington follow the state’s default method.

Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.