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Jan. 29, 2023

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Environmentalists appeal stormwater agreement

County, state taken to task

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Environmentalists will challenge Clark County’s unusual new plan for managing stormwater runoff.

Three conservation groups appealed Clark County’s new stormwater rule Monday, saying the agreement the county reached with the Washington Department of Ecology violates the federal Clean Water Act, won’t protect natural resources and will force taxpayers rather than developers to pay for the damage that runoff does to fish-bearing streams.

If environmentalists follow with a successful lawsuit under the Clean Water Act, the county could theoretically face tens of millions of dollars in penalties, forcing a settlement and policy changes.

“Clark County’s refusal to comply with state stormwater requirements is unfair to other cities and counties that are working hard to clean up our polluted waterways,” said attorney Jan Hasselman of the Seattle law firm Earthjustice, which is representing the groups. “When it comes to clean water, everyone needs to do their share.”

County Commissioner Steve Stuart shot back that the challenge is “all bluster” and driven entirely by Vancouver environmental activist Dvija Michael Bertish.

“This is one person dragging a couple of groups from Portland and Seattle into this,” Stuart said. “We’re doing the right thing for the community. … Our frankly innovative approach is legal, equivalent and better for watersheds.”

Bertish responded Monday by saying the out-of-town groups’ support proves his objections have merit.

Even if the county’s plan to shift more environmental costs onto taxpayers works, Hasselman’s clients pointed out in their legal brief, the county has no plan to pay the bills once current reserves run out.

Costs are estimated at $3 million to $6 million annually, depending on the pace of development. If the money never appears, costs would automatically shift back to developers under the state-county deal.

The county’s long-running feud with the state over how far it must go to reduce polluted runoff culminated in a December deal that allows the county to evade the state’s so-called “presettlement runoff standard.” That standard requires that newly developed sites drain as slowly during major flood events as they did prior to European settlement.

Local developers have protested that meeting the standard would drive up development costs and make new houses unaffordable.

The county’s commissioners have agreed, adding that the higher standard would also induce sprawl by making it cheaper to pave farmland than to redevelop the suburbs.

“I’m not going to vote for it,” Stuart said in December 2007. “Sue me.”

Hasselman said Clark County is alone among the state’s large counties in refusing to meet the new standard, which requires those counties to adopt updated controls for new development and redevelopment projects. The county’s existing stormwater rule was adopted in 1999.

“Clark County made a decision to violate the permit,” Hasselman said. “This wasn’t something they were unaware of. They missed the deadline by six months and then developed a standard that does not meet the state standard.”

Stormwater runoff is federally regulated as a major source of water pollution because it contains toxic metals, oil, grease, pesticides, herbicides, bacteria and nutrients that can run off buildings and pavement into streams that harbor salmon and other aquatic life.

Earthjustice has a record of success in challenging the state’s approach to controlling stormwater. It brought the lawsuit that prompted the Department of Ecology to shift away from requiring large stormwater retention ponds at development sites in favor of low-impact development that emphasizes less pavement and more protection of vegetation.

The appeal to the state Water Pollution Control Board was filed by the Rosemere Neighborhood Association, a group led by Bertish; Columbia Riverkeeper, based in Hood River, Ore.; and the Northwest Environmental Defense Center, based at Lewis & Clark College in Portland.

The pollution control board, whose three members are appointed by the governor and confirmed by the state Senate, hears appeals of decisions made by the Department of Ecology.

Hasselman said conservation groups may follow up their administrative appeal with a lawsuit against the county under the federal Clean Water Act. That law subjects violators to a court-ordered maximum penalty of $27,000 a day for each day they are found to be in violation of the act.

The county’s disputed regulations are now about 18 months old.

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