UPDATE: County violated Clean Water Act for three years, judge says

By Stephanie Rice, Columbian Vancouver city government reporter

Published:

Updated: June 7, 2013, 8:03 PM

 

A federal judge ruled that Clark County violated the Clean Water Act for three years and will be liable for damages, which have yet to be determined.

U.S. District Judge Ronald B. Leighton, who bluntly told the county last month that its argument “makes no sense,” signed the order Thursday.

In granting 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.

In 2008, the county refused to adopt state standards for managing polluted runoff, dismissing them as an unreasonable burden to place on private developers.

In 2011, Leighton issued an injunction against Clark County, ordering it to follow state 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.

Brett VandenHeuvel, executive director of Columbia Riverkeeper, said Friday that it’s too early to estimate how much money Clark County will have to pay for violating the law.

The statute allows a judge to levy a financial penalty based on the number of violations per day. The county can also be asked to fix damage caused by projects that were permitted in the three years it was in violation.

While the county commissioners could appeal Leighton’s decision to the Ninth Circuit Court of Appeals, VandenHeuvel expressed hope that the commissioners will decide to stop fighting and fix the damage that has been done.

“At some point, there needs to be leadership — where the county steps up and works to protect clean water instead of evading laws,” VandenHeuvel said.

Clark County Deputy Prosecuting Attorney Christine Cook said Friday that she had yet to speak to commissioners about Leighton’s ruling.

“We’re disappointed with the result in general, but we will determine what’s the best course,” Cook said.

She, too, said it was too soon to estimate potential penalties.

“We certainly haven’t created a list of things that we agree are violations,” she said. “I know we haven’t yet determined every project that has landed on one side or the other of that line since August 2008. That’s going to be something we’ll need to do.”

While the law allows for financial penalties, she said the focus could be on the county “engaging in some environmental good works.”

Janette Brimmer, staff attorney for Earthjustice in Seattle, issued a statement Friday saying Leighton’s ruling was recognition “that everyone needs to do their share to protect our precious streams, rivers and salmon and that Clark County, like everyone else, must follow the law.”

Partial victory

The county did score a victory Thursday, as Leighton rejected the plaintiffs’ contention that the county violated the Clean Water Act after Leighton issued the 2011 injunction.

While Clark County has yet to amend its flow control ordinance, Leighton wrote, it has asked the state Department of Ecology for guidance.

A day after the 2011 injunction, the Clark County Prosecutor’s Office placed a hold on development approvals, authorizations and permits. A month later, Marty Snell, the county’s director of community development, posted a “Guidance on Issuing Permits and Authorizations” on the county’s website, Leighton wrote. Snell made it clear that development projects must “comply with the default flow control standard unless they have already been found to comply with stormwater control requirements,” Leighton wrote.

Permits for new construction were sent to the county’s Department of Environmental Services for review to make sure the proposed work didn’t trigger extra mitigation efforts under state stormwater guidelines.

County Environmental Services Director Don Benton was in Olympia Friday at his other job as a state senator and did not return a call seeking comment.

To meet the state standard, computer models are used to determine how slowly land drained prior to Euro-American settlement. Back then, 95 percent of the county was forested, and the remaining land was prairie.

Under the county’s rejected plan, the developer merely had to ensure that on-site flow conditions did not change, with the county making up the difference between that and the pre-settlement standard by restoring flow conditions elsewhere in the same water resource inventory area. The county’s plan was deemed insufficient under federal and state clean water laws.

The county had tried to argue to Leighton that its stormwater plan, a compromise developed with the state Department of Ecology, was reversed and remanded for modification, not thrown out, by the state court.

That’s a distinction without a difference, Leighton wrote in an order last month.

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