Clark County dealt stormwater setback

State high court refuses to review unfavorable ruling

By Stephanie Rice, Columbian Vancouver city government reporter

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Clark County, which has been fighting rules about controlling polluted rainwater runoff for years, was dealt another blow Wednesday, this time by the Washington Supreme Court.

The court denied a request by the county and the Building Industry Association of Clark County to review a lower-court ruling.

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.

With few exceptions, the Supreme Court chooses which cases it wants to hear.

Chief Justice Barbara Madsen and Justices Susan Owens, James Johnson, Charles Wiggins and Sheryl Gordon McCloud considered the county's request during a motion calendar meeting on Tuesday, and voted unanimously to deny review.

"It's really the outcome we anticipated," said Dvija Michael Bertish of the Rosemere Neighborhood Association, an environmental advocacy group that, along with Columbia Riverkeeper and Northwest Environmental Defense Center, have been winning at every level in their attempt to force Clark County to follow state default standards for managing polluted runoff.

Attorneys for Clark County and the builders 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.

Now that the state case is over, the environmental groups will focus on their case in federal court, Bertish said.

U.S. District Judge Ronald B. Leighton recently gave plaintiff groups the go-ahead to proceed with their lawsuit after it had been on hold in deference to the state case.

In the federal case, plaintiffs are seeking financial penalties from the county.

In December 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. Back then, 95 percent of the county was forested and the remaining land was prairie.

Computer models are used to determine how slowly land should drain.

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 presettlement standard by restoring flow conditions elsewhere in the same water resource inventory area.

On Wednesday, Bertish said he wishes the county would agree to find some common ground and work to find a management plan instead of dismissing low-impact development practices that have been accepted elsewhere in the state, such as rain gardens and pervious pavement, as too costly.

"It's not the impediment they are making it out to be," Bertish said.

Local state legislators introduced four anti-stormwater regulation bills this year. All four died.

Clark County Commissioner Steve Stuart said he's disappointed the Supreme Court didn't take the case. He said he can't comment on the federal litigation.

"We'll have to discuss the next steps next week," Stuart said, adding that the county remains under the federal injunction.

In the past, the county has said it cannot account for how much it has cost to fight the regulations. For the most part the county has used its own staff attorneys on the long-running case.

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.