Clark County will waive review fees for developers whose projects are caught up in a federal injunction over stormwater rules, commissioners decided this week.
On Dec. 28, a federal judge said that while the county’s controversial approach to managing stormwater runoff remains on appeal in state court, the county must follow the state’s more stringent guidelines.
At first, county officials were not sure how to apply the injunction to pending applications.
Clark County Community Development Director Marty Snell said Thursday that commissioners agreed that projects that had received preliminary approval prior to Dec. 28, but not final engineering approval, must comply with the state standard.
Projects that received final engineering approval prior to Dec. 28 are not affected by the injunction, Snell said.
The county went back to 2004 to count applications for land divisions (for small and large housing subdivisions) and site plans (for commercial or office projects or multifamily housing) that received preliminary approval but were never pursued, likely because of the economy.
They ended up with a final tally of 142 land divisions and 136 site reviews, said Deputy Prosecuting Attorney Chris Cook.
Should developers wish to move forward on those projects, they will have to go back to the county and ensure the plans will satisfy state stormwater guidelines.
“They wouldn’t be going through this (if not for the injunction) so we are not going to charge them,” Snell said.
The county has asked the U.S. District judge who signed the injunction to order the plaintiffs to post a bond so that in the event the county wins in state court the plaintiffs could pay damages.
On Jan. 9, the county filed a motion asking for a $2.9 million bond. On Wednesday, the county filed an amended request that asks for a $1.1 million bond.
The plaintiffs — Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center — can’t afford to post a $1 million dollar bond, said attorney Janette Brimmer of Earthjustice.
She said she’ll be objecting to the $2.9 million amount because she doesn’t think the county’s amended filing met the court’s deadline.
Courts often waive the bond requirement or set a minimal fee in cases of public interest, she said.
Realistically, setting such a high bond would deny the plaintiffs’ access to judicial recourse, she said.
“Those are all things the courts consider when setting a bond,” Brimmer said.
Plus, the county’s request presumes an unlikely scenario that all of the backlogged projects will go forward, she said.
Dvija Michael Bertish of the Rosemere Neighborhood Association called the bond request “absurd” and an example of how the county has responded to the stormwater challenge with a “temper tantrum.”
If U.S. District Judge Ronald B. Leighton signs off on the county’s bond request, the plaintiffs would ask that the injunction be lifted, Bertish said, because they wouldn’t be able to afford it.
Lengthy legal fight
In 2010, the plaintiffs challenged the county’s plan for managing stormwater runoff to the state Pollution Control Hearings Board.
The county’s plan had been developed in a compromise with the state Department of Ecology.
In January 2011, the pollution board ruled the county’s plan violates state and federal laws designed to protect clean water.
The Board of Clark County Commissioners decided to file a challenge to the state Court of Appeals.
The state’s default management plan requires that newly developed sites drain as slowly as they did prior to Euro-American settlement.
In Clark County, 95 percent of the land was forested, said Kevin Gray, the county’s director of environmental services, with the remainder being prairie.
Under the county’s plan, the developer has to ensure that on-site flow conditions do not change, with the county making up the difference between that level and the presettlement standard by restoring flow conditions elsewhere in the same water resource inventory area. The county argues its approach allows for locating restoration in areas that will provide the most ecological benefit, including reforestation that cannot occur at the development site.
Commissioners also believe developers should not have to pay for past sins by doing extensive work.
Under state guidelines, developers end up using low-impact development models such as pervious pavement or building bigger stormwater retention facilities, Gray said. Developers don’t like sacrificing a buildable lot for the sake of meeting stormwater guidelines, he said.
Critics of the county’s plan argue it doesn’t go far enough to protect salmon and other aquatic life. They also don’t like that, since the county makes up the difference by improving watersheds, the cost gets shifted to the public.
In his Dec. 28 injunction order, Judge Leighton made clear he’s leaving it up to the state Court of Appeals to rule on the merits of the legal challenge, but said plaintiffs showed they were entitled to the injunction.
“It is in the public’s interest to protect the environment and enjoin the issuance of approvals and building permits for projects under what the (Pollution Control Hearings Board) has found to be inadequate standards,” Leighton wrote. “The public interest favors compliance with environmental laws.”
Leighton also didn’t care for the county’s argument that it has spent approximately $3.7 million on planning and building capital projects for stormwater flow control.
No date has been set for oral arguments before the Court of Appeals, and that ruling could be appealed to the Washington Supreme Court.
If the county were to violate the federal injunction, it could be subject under the Clean Water Act to a maximum penalty of $37,500 a day.
Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.
