Clark County to pay $3.6 million for violating Clean Water Act

By Stephanie Rice, Columbian Vancouver city government reporter

Published:

Updated: December 18, 2013, 5:54 PM

 

Clark County will pay $3 million over six years for violating the Clean Water Act, according to terms of a settlement announced Wednesday that ends years of litigation.

The county will also pay $600,000 to the plaintiffs to cover attorney fees, said county Administrator Mark McCauley.

The $3 million will be paid to an independent third party, the Lower Columbia Fish Recovery Board, which will “oversee projects to protect and restore Clark County rivers and streams harmed by stormwater pollution,” said Lauren Goldberg, staff attorney for Columbia Riverkeeper, one of three plaintiffs.

Under the Clean Water Act, offenders can face financial penalties based on the number of violations per day, but offenders can also be asked to fix damage caused by projects that were permitted in the time it was in violation.

The annual $500,000 payments will begin in June 2015.

The county will be eligible to apply to the Lower Columbia Fish Recovery Board to do restoration work, if it wishes to compete against local conservation groups.

McCauley said it hasn’t yet been determined which fund the money for the settlement will come from, but under the terms of the settlement, it has to be “new money.” In other words, it cannot come out of the county’s existing budget for clean water projects.

The settlement follows a federal court ruling that the county violated the law for three years and would be liable for damages. In June, U.S. District Judge Ronald B. Leighton granted partial summary judgment to plaintiffs Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center.

Leighton wrote that “even viewed in the light most favorable to Clark County,” the evidence shows the county was in violation of its National Pollution Discharge Elimination System permit from Aug. 17, 2008, to Dec. 28, 2011.

The plaintiffs were represented by attorneys Janette Brimmer and Jan Hasselman of Earthjustice.

Money to stay local

Commissioner Steve Stuart, chairman of the board of commissioners, said Wednesday that he appreciated the plaintiffs were willing to work with the county to put money into local projects. Had the plaintiffs not agreed to mediation and simply asked a judge to impose civil penalties for violating the Clean Water Act, the county could have been ordered to pay millions more.

Going forward, Stuart said the county hopes to work with plaintiffs to preserve and enhance water quality.

Specifically, the projects will aim to improve salmon habitat and reduce dirty stormwater pollution.

“This is a win for clean water and healthy salmon runs in Clark County,” said John Felton, chairman of the Rosemere Neighborhood Association, an environmental group. “This is a good result for the community as a whole.”

“This agreement means cleaner water and more salmon for the region as a whole,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper. “The county will now act to reduce polluted stormwater and invest in protecting salmon. It’s a win-win.”

The fact plaintiffs insisted that a third party decide how the $3 million will be spent “kind of speaks for itself,” VandenHeuvel said.

Don Benton, the county’s director of environmental services, said he didn’t mind that a third party was asked to manage county projects. He said the county didn’t want the plaintiffs to manage the money either, so it was best to involve an independent group.

Lengthy fight

In 2008, the county refused to adopt state standards for managing polluted runoff, dismissing them as an unreasonable burden to place on private developers. The board of commissioners — then made up of Stuart, Marc Boldt and Betty Sue Morris — argued the county’s own system of stormwater management was superior to the state’s.

In 2011, Leighton issued an injunction against Clark County, ordering it to follow the state’s default stormwater requirements that newly developed land drain as slowly as it did prior to Euro-American settlement.

At the time, the county was defending its stormwater plan in the state courts, a fight it ultimately lost.

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 streams, degrading water quality and killing marine life. It causes flooding and erosion, and plaintiffs argued the county was shifting the burden of paying for impacts from developers to taxpayers.