Judge slams Clark County's stormwater logic

Federal justice writes that 'Clark County's argument makes no sense'

By Stephanie Rice, Columbian Vancouver city government reporter

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Clark County's argument in defense of an allegation it has failed to adequately control polluted stormwater runoff doesn't make sense, a federal judge wrote in an order requesting additional information.

Under the federal Clean Water Act, local governments must operate a stormwater system that complies with a National Pollution Discharge Elimination System permit.

Clark County has been found by the state Pollution Control Hearings Board to be in violation of the permit, and that finding was upheld in state courts, U.S. District Judge Ronald B. Leighton wrote in a May 15 order.

Now plaintiffs Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center are seeking financial penalties in the federal case.

The county argues that its stormwater order, a compromise developed with the state Department of Ecology subsequently, was reversed and remanded for modification, not thrown out.

That's a distinction without a difference, Leighton wrote.

"Clark County's argument makes no sense," he wrote. "Although the (Pollution Control Hearings Board) remanded the matter to (state Department of Ecology) for further action consistent with its order, the PCHB explicitly stated that the agreed order was "unlawful" and the permit modification was "invalid." Following the PCHB's decision, Ecology even declared on its website that 'Clark County's Flow Control Mitigation Program is no longer … applicable.' The agreed order and permit modification are simply not valid," Leighton wrote.

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 pre-settlement standard by restoring flow conditions elsewhere in the same water resource inventory area. The plan was deemed insufficient under federal and state clean water laws.

The ecology department issued a new permit to the county in 2012 with "limited changes," Leighton noted.

Leighton asked attorneys three questions about how the updated permit affects the case.

In response, Clark County Deputy Prosecutor Christine Cook wrote that the county "has demonstrated its good faith and efforts" to comply with stormwater requirements.

A federal citizen lawsuit may only be brought for a violation of a current permit, Cook wrote. Since the county has received a new permit, she argued, the case against the first one is moot.

She conceded the federal court has ruled Clark County was in violation of the initial permit. "Even if that is the case, the plaintiffs have brought forth no evidence of the number of violative discharges of pollution, or of any actual harm to the environment that might have resulted from noncompliance."

Seattle attorneys Janette Brimmer and Jan Hasselman for Earthjustice wrote in response to Leighton that the 2012 permit doesn't affect plaintiff's motion for partial summary judgment.

"Clark County apparently has no intention of complying with the default flow control requirements of the 2007 permit, the 2012 permit or -- for that matter -- the soon-to-be effective 2013 permit, absent an order from this court compelling it to do so," they wrote.

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.

"These past and continuing violations, and the continuing environmental damage from all projects built to the inadequate flow control standard, are still redressable in this litigation," plaintiffs' attorneys wrote. "Courts have repeatedly held that even where a permittee comes into compliance during the course of litigation, where violations existed at the time the litigation commenced, an action remains for at least penalties for past violations."

The federal government regulates runoff, a major source of water pollution containing toxic metals, oil, grease, pesticides, herbicides and bacteria that run off buildings and pavement into fish-bearing streams.

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.

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

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.

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