Lawsuit against county to proceed

Federal courts can hear stormwater dispute, judge rules

By Stephanie Rice, Columbian Vancouver city government reporter

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Plaintiffs who successfully challenged Clark County's stormwater management plan in state court have been given the go-ahead to proceed with a federal lawsuit.

Last week, U.S. District Judge Ronald B. Leighton lifted a stay on the federal lawsuit, which he had put in place in deference to the state case.

Attorneys representing activist groups Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center asked Leighton to lift the stay following a favorable ruling by the state Court of Appeals.

The county had asked Leighton to keep the federal case on hold, saying it would be premature to go forward while the Court of Appeals ruling is on appeal to the state Supreme Court.

"The issues in these cases were never overlapping; they were simply similar," Leighton wrote in his Feb. 21 decision. "That similarity has been greatly diminished in the aftermath of the Court of Appeals' decision, and the limitation of the issues the county seeks to litigate further in state court."

In December 2011, 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 petitioned the state Supreme Court to review the decision.

In the motion to lift the stay, plaintiffs' attorneys argued 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 asked the Supreme Court to consider only 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.

While the new head of the state Department of Ecology said last month the state will work with Clark County, the county remains under the federal injunction to follow the state default stormwater rules.

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.

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. Then attorneys can seek an appropriate penalty, including asking the county to fix damage caused by the projects.

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