UPDATE: Clark County loses stormwater ruling

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Updated: September 25, 2012, 8:31 PM

 
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Appeals court stormwater ruling

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Clark County’s controversial approach to controlling stormwater was shot down Tuesday by the Washington Court of Appeals, which said the plan for handling polluted runoff doesn’t adequately protect waterways.

A three-judge panel 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 insufficient under federal and state clean water laws. The county, which was joined in the appeal by the Building Industry Association of Clark County, has 30 days to appeal to the Washington Supreme Court.

Clark County Chief Civil Deputy Prosecutor Bronson Potter said Tuesday he will consult with commissioners on whether they wish to appeal. In previous meetings, commissioners have been adamant about fighting the regulations. Commissioners Marc Boldt and Tom Mielke are up for re-election in November, but both their challengers — David Madore and Joe Tanner — have criticized development regulations.

“I’m very disappointed,” Potter said about Tuesday’s ruling. He said he believes the county’s program provided the opportunity to do more environmental protection work. However, the county’s program, which shifts part of the cost from developers to taxpayers, would run out of money if the pace of development picked up, Potter said.

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.

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

Initially, 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 the new plan, which said 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.

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.

“New construction and development increase stormwater runoff by adding impervious surfaces to land that would otherwise allow water to naturally seep into the ground,” wrote Court of Appeals Presiding Judge David Armstrong.

Jan Hasselman, a Seattle attorney for Earthjustice, which represents the three plaintiffs, said Tuesday it’s time for the county to stop fighting environmental protections. Appealing to the Supreme Court, he said, would waste resources.

“Let’s put money into cleaning up streams and rivers and recovering our salmon populations,” Hasselman said.

Clark County’s the only jurisdiction in Western Washington that appealed. Other local governments, including the city of Vancouver, are able to follow the rules, he said.

Dvija Bertish of the Rosemere Neighborhood Association, an environmental group, said Tuesday that the decisive opinion — Judge Armstrong was joined by Judges Joel Penoyar and Robin Hunt in ruling against the county — will help the county decide it’s time to stop fighting.

“We won — hook, line and sinker,” Bertish said, as the judges struck down each of the four arguments put forward by the county and the BIA.

The plaintiffs also have a pending case against the county in federal court. Last year, U.S. District Judge Ronald B. Leighton issued an injunction against the county, ordering it to follow the state’s default stormwater guidelines while its development standards were under review by the Court of Appeals.

If the county appeals Tuesday’s ruling to the Washington Supreme Court, the federal case will remain on hold, Hasselman said. Once the matter has been resolved in the state courts, he will go back to federal court and possibly, depending on whether the county cooperates and agrees to do more to protect waterways, ask the county to pay damages and attorney costs.

“At some point, there’s going to be some accountability,” Hasselman said. “Our first choice is always to sit down and work out a solution that does the most for the environment.”

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