Permits for new construction in Clark County are getting an even closer look following a federal judge’s order to follow the state’s default stormwater guidelines.
The county’s controversial plans for managing stormwater runoff are under review by the state Court of Appeal.
Violating the federal injunction, signed Dec. 28 by U.S. District Judge Ronald B. Leighton, carries a maximum penalty of $37,500 a day under the Clean Water Act, said Marty Snell, the county’s director of community development.
“We will be very cautious,” Snell said.
David Becker, a homebuilder, said one of his superintendents went to the county’s permit office Wednesday to pay for a residential permit that had been approved. The superintendent was told the permit could not be issued, Becker said, and it was unknown when the permit would be ready.
Becker needs the permit to start construction on a home in the Deer Haven Estates near Battle Ground.
Snell said there’s not a moratorium on new construction, but permits are being sent to the county’s Department of Environmental Services to make sure the proposed work doesn’t trigger extra mitigation efforts under the state stormwater guidelines. Only permits for new construction will be reviewed, he said. Permits for plumbing or mechanical work or tenant improvements aren’t affected.
Snell estimated that the extra scrutiny will cause delays of a few days in getting the permits issued.
The federal injunction was requested by a trio of 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 state 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 level and the presettlement standard by restoring flow conditions elsewhere in the same water resource inventory area. The county argues its approach allows for locating restoration in areas that will provide the most ecological benefit, including reforestation that cannot occur at the development site. Commissioners also believe that developers should not have to pay for past sins by doing extensive work to meet the presettlement standard.
Critics of the county’s plan argue it doesn’t go far enough to protect salmon and other aquatic life. They also don’t like that, since the county makes up the difference by improving watersheds, the cost gets shifted to the public.
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, but said 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.”
Leighton also didn’t care for the county’s argument that it has spent approximately $3.7 million on planning and building capital projects for stormwater flow control.
“Defendants argue that they have taken costly steps to comply with their obligations. However commendable those efforts might be, they do not alleviate defendants’ duty to comply with the terms of the permit,” Leighton wrote.
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.