Plaintiffs push federal stormwater case
Environmental groups' attorneys ask court to allow matter to proceed
Tuesday, November 20, 2012
Plaintiffs who successfully challenged Clark County's stormwater management plan in state court filed a motion Tuesday in federal court, asking a judge to go forward with a case that had been on hold in deference to the state case.
The motion was filed in U.S. District Court in Tacoma by attorneys representing activist groups Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center.
In December 2011, U.S. District Judge Ronald B. Leighton issued an injunction against Clark County, ordering it to follow the state's default stormwater rules while its stormwater plan was under review by the state Court of Appeals.
In September, the Court of Appeals upheld a ruling by the state Pollution Control Hearings Board, which said a compromise developed between the county and the state Department of Ecology was not backed by science and was insufficient under federal and state clean water laws.
Clark County and the Building Industry Association of Clark County have petitioned the state Supreme Court to review the decision.
Bronson Potter, the county's chief civil deputy prosecutor, said Tuesday attorneys should be notified by the end of the year whether the Supreme Court will hear the case.
Until then, Potter said, the county will argue that the federal case should remain on hold.
However, in the motion filed Tuesday by Janette Brimmer and Jan Hasselman, attorneys for Earthjustice in Seattle, the argument was made that nothing the state's high court could say would change the fact that the county's plan was found invalid. Attorneys for Clark County and the BIA only asked the Supreme Court to consider a few narrow issues, including whether the Pollution Control Hearings Board overstepped its authority by expanding the scope of its review when it invalidated the county's plan.
"There is no possible outcome in the state court appeal that will result in reinstatement" of the county's plan, attorneys wrote.
Potter disagreed, saying that if the Supreme Court does take the case and issues a ruling favorable to the county, there could be implications in how the county has to manage runoff from newly developed land.
Clark County Director of Environmental Services Kevin Gray said Tuesday the county continues to apply the state's default management plan to all projects.
The state method requires that newly developed sites drain as slowly as they did prior to Euro-American settlement.
Under the county's rejected plan, the developer had to ensure that on-site flow conditions did 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.
The county and developers argue the state standard makes development too expensive, while the plaintiffs argue the county's method doesn't go far enough to protect salmon.
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.
While the purpose of the state lawsuit was to get the county to follow state guidelines, one purpose of the federal lawsuit is to make the county pay.
If Leighton rules Clark County was in violation of the Clean Water Act when it refused to adopt the state standards in 2008, plaintiffs can find out how many development projects were permitted and built to an inadequate standard, Brimmer said. Then attorneys can seek an appropriate penalty, including asking the county to fix damage caused by the projects, she said.