County continues legal battle against stormwater rules

By Stephanie Rice, Columbian Vancouver city government reporter

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photoDirector of Clark County Environmental Services Kevin Gray gives a tour of a wetland on Northeast 29th Avenue near Northeast 219th Street last month. The land has a pond that forms in the rainy months and is an example of the type of off-site mitigation projects the county has done at public expense to keep costs down for developers.

(/The Columbian)

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A strict rule for handling polluted runoff may keep a Chuck’s Produce from opening in Salmon Creek, but not following the rule could cost taxpayers up to $37,500 a day.

Clark County, alone among local governments in Western Washington, has been bucking a rule for handling rainwater runoff on newly developed land.

Clark County commissioners consider the rule a costly, illegal economy killer, and they argue that the county can better prevent pollution by making off-site watershed improvements at public expense. They’re pressing their case before the state Court of Appeals.

But that approach has been problematic. A federal judge has ordered the county to follow the stricter rule for now, and the fund that has been paying for the county’s approach is running dry, in part because of commissioners’ decision to shift the costs from private developers to taxpayers.

‘Illegal standard’

The standoff has revolved around a state requirement that newly developed and redeveloped sites drain as slowly as they did prior to the arrival of Euro-Americans. Back then, 95 percent of the county was forested and the remaining land was prairie.

Commissioners rejected that requirement until a federal judge intervened and said they had no choice.

On Dec. 28, U.S. District Judge Ronald B. Leighton signed an injunction saying the county had to follow the so-called pre-settlement runoff standard as it challenged the rule in court.

The injunction had been requested by three conservation groups that challenged the county’s alternative method for managing runoff in 2010. The state Pollution Control Hearings Board agreed the county’s plan didn’t provide equal protection to waterways.

The county’s method may be easier to implement and cheaper for developers, but “there are no data, studies or scientific support to support its underlying assumption that harm caused to one stream can be mitigated through a project in a different watershed,” the board said. The three-member board of gubernatorial-appointed attorneys also expressed concern about “whether historic impacts will ever be addressed in a meaningful way in Clark County,” and questioned how the county will pay for the clean water program given that its clean water fees (see box) are significantly lower than other jurisdictions.

The county appealed to Clark County Superior Court, but conservation groups won again by getting the case to be heard by the state Court of Appeals instead of a local judge.

Oral arguments are expected in May or June; a ruling could come down by the end of the year.

If the county loses, the stakes get even higher for taxpayers: The county could be ordered to pay penalties under the federal Clean Water Act of up to $37,500 per day.

But commissioners aren’t backing down.

“It is an illegal standard,” Commissioner Steve Stuart said during a Feb. 15 work session. “At some point, a court will figure that out. We are being forced to apply an illegal standard … it’s as clear as day. You can’t require someone to fix a harm they didn’t create.”

The Rosemere Neighborhood Association is one of three conservation groups fighting the county. Rosemere’s Dvija Michael Bertish said commissioners are challenging a standard he called the “bare minimum” for averting the worst water pollution.

“Clark County leaders are alone in claiming that the flow control standard is stopping development or making it unworkable,” Bertish wrote in an email. “Many, many communities -- cities and counties, in western Washington and indeed throughout the West Coast and the nation as a whole -- are applying this standard (or even stricter ones) to development and meeting it. There is nothing special about Clark County that suggests the citizens here have to trade clean water for building. It isn’t true anywhere else; it isn’t true in Clark County.”

Long-running dispute

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.

Under the Clean Water Act, governments that operate a separate storm sewer system must have a National Pollutant Discharge Elimination System (NPDES) permit. The state Department of Ecology issues the permits. Clark County -- along with King, Pierce and Snohomish counties and the cities of Tacoma and Seattle -- were required to get permits in 1999. In 2007, the state expanded permits to approximately 80 counties and cities in western Washington, including Vancouver, Camas, Battle Ground and Washougal.

Colleges, ports and other jurisdictions also have permits; the cities of Ridgefield and La Center are exempt because of their small size.

Eastern Washington, because it has such a different climate, has different requirements.

In 2007, the stricter presettlement runoff standard was added to the permit, said Kevin Gray, director of the county’s Department of Environmental Services. County commissioners balked from the start. They particularly didn’t like the fact that the standard was developed from studies in the Puget Sound -- and that the state’s two largest cities, Seattle and Tacoma, were exempted from the runoff standard because they are more than 40 percent impervious surface. Those cities have a different approach to meet clean water goals.

Stuart said at the time that the state’s approach would be bad for the environment, because infill and development would stall, and there would need to be more expansion of the urban boundaries.

He said he’d oppose any county ordinance that would require sites to drain as well as they did when they were forested.

“I’m not going to vote for it,” he said in 2007. “Sue me.”

Commissioners adopted a different ordinance and were put on notice by the state Department of Ecology that they were in violation of the NPDES permit.

The county and the state worked out an alternative method: The developer wouldn’t make drainage at the site any worse, and the county would make up the difference by doing mitigation projects at public expense in the same Water Resource Inventory Area.

Then came the legal challenge, filed by Rosemere Neighborhood Association, Columbia Riverkeeper and the Northwest Environmental Defense Center.

The three-member state Pollution Control Hearings Board, whose members are appointed by the governor, ruled after a four-day hearing in Tumwater that the county’s alternative method was not backed by science and would not meet the goal of reducing harmful impacts of polluted runoff, which include increasing flooding, adding cost to providing safe drinking water and impacting fish and water recreation.

Now, the county has to wait to hear from the state Court of Appeals; the ruling could be appealed to the Washington Supreme Court.

Who knows best?

During his State of the County address on Feb. 2, Clark County Commissioner Chairman Marc Boldt drew applause for saying the state needs to set basic goals on managing polluted rainwater and then get out of the way and let local governments determine how to meet those goals.

It’s a belief shared by Stuart and Commissioner Tom Mielke, as well as Gray.

While the Pollution Control Hearings Board invalidated the county’s plan for managing polluted runoff as being unsupported by science, Gray said the county shouldn’t have to spend money proving what they know works. Gray testified to the board that public stormwater mitigation efforts are better designed, better built and better maintained.

And the county does track the health of the watersheds.

Ian Wigger, a Clark County natural resource specialist, and Gray waded into the creek and stretched out a measuring tape. Using a handheld stream flow meter, Wigger started reading off numbers to Gray.

Mill Creek has been a little flashy lately, Wigger said, which signals trouble beyond the potential for flooding. Fast-moving water erodes the bank, spreads pollution and smothers fish eggs. Too little flow hurts water habitat, as well.

Wigger and his four colleagues “have gone out and walked every stream in Clark County,” Gray said. They have advanced degrees in water resource management, and they know how to mitigate the negative impacts of development on streams, Gray said.

By doing off-site mitigation, Gray said, the county can pick sites in a watershed and enhance them with native vegetation.

The county’s preferred method results in considerable savings for developers.

In January, a spokesman for organic grocer Chuck’s Produce and Street Market hinted that plans for a second Clark County store might not go forward because the federal injunction changed the plan for how stormwater would be managed.

To determine how slowly a site would drain under forested conditions, engineers use modeling systems. Developers have to use techniques such as large stormwater detention ponds, which they don’t like because they are expensive to design and maintain, and they take up valuable land.

As an example of the cost difference to developers between the county’s preferred standard and the state standard, a 45,000-square-foot retail project on Highway 99 (such as the proposed Chuck’s) would cost $20,600 to develop stormwater controls under the county’s method, which tells developers to not make the runoff any worse, Gray said.

The state standard would cost $216,500, Gray said.

Unfair standard?

Jamie Howsley, an attorney who represents the Building Industry Association of Clark County, supports the commissioners’ challenge.

In adopting the forested presettlement standard, the state “is effectively trying to do restoration at the expense of development and redevelopment,” he said.

Society also bears a responsibility for paying to correct past environmental wrongs, he said.

Two reasons why developers and commissioners say the state standard should not apply are troublesome soils and the timing of when the county’s forests were cleared.

While gravel deposits from the ancient Missoula floods are tens of feet thick in areas of Clark County and make for well-draining soil, the rest of the county has a clayish muck that, when flooded, backs up like a plugged toilet.

Andrea McNamara Doyle, the only member of the Pollution Control Hearings Board who acknowledged Clark County’s alternative method has potential (but agreed with members William Lynch and Kathleen Mix that there were other problems), was sympathetic to the county in her written opinion.

Large areas of unincorporated Clark County (think Hazel Dell, Salmon Creek and Felida) were transformed from pasture land to homes and strip malls during the county’s boom years in the 1980s and the 1990s, when it was the fastest-growing county in the state.

And all of those homes and strip malls were built on iffy soils with stormwater detention systems designed to early standards that have “shown to be ineffective in controlling streambank erosion due to the increased duration of peak discharges,” she noted.

Bill Moore, who oversees the permitting program for the Department of Ecology, said Clark County’s soil troubles are not unique.

“We have a wide range of soils in the Puget Sound,” he said, including some soils that “are almost like concrete.”

The point of the presettlement standard, he said, is that at low levels of urbanization (unlike in Seattle and Tacoma), “we see significant changes to hydrology, and that’s having severe impacts on lowland streams and creeks.”

A forest serves as a big sponge, he said. The water gets absorbed into the soil and then pumped back into the atmosphere. He acknowledged that “presettlement standard” is an unfortunate term because it distracts people from the goal of making developed sites mimic a natural setting as much as possible.

The county also argues that since much of the land was deforested by the late 1800s and early 1900s and used for farmland, it doesn’t make sense to go back to a forested condition. Janette Brimmer, an attorney for Earthjustice, a Seattle firm representing the conservation groups fighting Clark County, says it doesn’t matter when the land was cleared.

“The requirement under the law is to consistently make improvement,” she said.

Rising costs

If the county wins in court, it could set a precedent that other local governments could follow.

For now, others have adopted the state standard.

Debbie Terwilleger, director of Snohomish County’s Surface Water Management Division, said “everyone looked at Clark County’s efforts as definitely a different approach. It was innovative, it was a good-faith effort, but there were problems with it.”

Pierce County’s water quality manager, Dan Wyre, said using the state standard was the easiest route for the county to get its NPDES permit.

Going forward, the trend will be using low-impact development to prevent runoff rather than just capturing it, treating it and releasing it, Wyre said.

In Clark County, one next step will be figuring out how to fill the clean water fund, currently projected to be exhausted by the end of this year unless the county receives additional grant revenue or delays projects.

Funded primarily by clean water fees, the fund pays employee salaries, benefits and office costs. It also pays for monitoring water quality, maintaining more than 900 public stormwater facilities and building capital projects.

Since 2009, the county has spent $3.4 million just to complete 15 flow control projects to mitigate for developers.

Gray, whose staff has been working on a cost analysis study, said commissioners could vote to raise clean water fees, which are the lowest in western Washington among municipalities with an NPDES permit, take money from the road fund or make developers pay.

There’s a tiered fee schedule; generally, the annual fee for single-family residences in unincorporated Clark County is $33.

Commissioners adopted the fee after a federal judge found the county in violation of the Clean Water Act in 1999 and ordered them to meet minimum requirements.

The county was ordered to pay plaintiffs (the Clark County Natural Resources Council and Waste Action Project of Seattle) $50,000 for legal fees and, in lieu of a penalty, paid $20,000 for one year of increased street sweeping and catch basin cleaning.

Pete Capell, the county’s director of Public Works, said if commissioners draw from the road fund, it will mean even less money for capital projects.

Maintenance and preservation of roads are the highest priority, he said.

“We’ve got to maintain our infrastructure,” he said. “With all of the growth that occurred in the ’90s and early 2000s … we’ve almost doubled what we’re spending on preservation.”

It will be a difficult decision for commissioners to decide how they are going to fund stormwater, Capell said.

“There are probably too many things up in the air, with the injunction, and they are being prudent,” he said. “They are not out of money yet, so let’s see how this plays out and not overreact.”

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