Clark County continues stormwater fight

State Supreme Court asked to review appeals panel's decision

By Stephanie Rice, Columbian Vancouver city government reporter

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Clark County asked the Washington Supreme Court on Thursday to wade into the contentious issue of stormwater regulations.

The county was joined by the Building Industry Association of Clark County in filing a petition for review of a Sept. 25 Court of Appeals decision, in which a panel of three judges affirmed the decision of the state Pollution Control Hearings Board.

The Pollution Control Hearings Board ruled a compromise between the county and the state Department of Ecology was insufficient under federal and state clean water laws.

"The hearings board has tried to dictate aspects of our Clean Water program approved by the state long ago," Marc Boldt, chairman of the Board of Clark County Commissioners, said in a statement released by the county. "We believe it overstepped its bounds. The Supreme Court should recognize that and reverse the appeals court decision that upheld the error."

Commissioners say the regulations increase the cost of development.

In its petition, Clark County argues that it should be given special consideration under the state's rules for Western Washington.

The controversy centers on a 2007 Department of Ecology requirement that newly developed land drain as slowly as it did prior to Euro-American settlement.

Computer models are used in determining how slowly land should drain.

"One consideration in this process was the length of time since the forest was cleared in Clark County," wrote Chris Cook, a deputy county prosecutor. "Nonnative settlement of the Northwest began in the early 1800s at Fort Vancouver, in what is now Clark County."

The county was stripped of its forests for farms, and later pavement, she wrote.

The areas left to be developed or redeveloped -- and subject to the drainage rule -- were deforested by 1900, she wrote.

Under the Clean Water Act, governments that operate a separate storm sewer system must have a National Pollutant Discharge Elimination System permit.

Commissioners dismissed the requirement as too costly and stringent and adopted a different ordinance. They were put on notice by the state that they were in violation of their NPDES permit. Commissioners compromised and adopted a new plan that said the developer can't make runoff any worse, with the county making up the difference through off-site watershed improvements at public expense.

The compromise with the Department of Ecology was challenged to the state Pollution Control Hearings Board by the Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center.

The state Pollution Control Hearings Board ruled that the county's plan to mitigate problems by making improvements at another location was not based on science, a conclusion shared by the Court of Appeals.

Clark County's the only jurisdiction in Western Washington to appeal the pre-Euro-American standard.

Dvija Bertish of the Rosemere Neighborhood Association, an environmental group, said earlier this month he's confident his side will continue to succeed in enforcing stormwater management requirements.

If the county does end up victorious, it will have to figure out how to pay for the stormwater program, which will soon run out of money.

This year, 66,905 property owners in unincorporated Clark County had a clean water fee included with their property taxes. The fees have not changed since they were implemented in 2000.

In local cities, residents pay stormwater fees as part of a water bill.

Average single-family residences in unincorporated Clark County pay $33 a year, while residents in Ridgefield, Camas, Washougal, Vancouver and Battle Ground pay at least twice as much.

Stephanie Rice: 360-759-4508 or stephanie.rice@columbian.com.