January 7, 2011

Court backs strong Washington rules to rein in polluted rainwater runoff

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In a ruling with statewide implications that hands a victory to environmentalists, the Washington Pollution Control Hearings Board rejected a system to control polluted rainwater runoff in Clark County that partially shifted the financial burden from developers to the public.

The board’s multi-pronged 2-1 decision shot down a special deal cut by the Department of Ecology for Clark County, saying Ecology punted on its responsibilities to rein in the fast-growing pollution source, instead allowing the county so much leeway that it amounts to “an impermissible self-regulatory program” when Ecology is supposed to be in charge. The board’s ruling holds that the resulting system violates the federal Clean Water Act and state law.

It’s unclear for now whether the state, Clark County or developers will appeal. The case is focused on rainwater runoff, known as “stormwater,” which is Puget Sound’s largest source of toxic pollutants and is a major factor in the decline of waterways statewide.

The pollution starts when raindrops hit hard surfaces – parking lots, roofs, streets, and so forth. That water coalesces into rivulets that run downhill toward the nearest river, lake, stream or bay, picking up pollution that transforms the water into a bouillabaisse of tainted substances including oil, gas, animal excrement, fertilizers and pesticides.

The board had previously ruled that southwestern Washington’s Clark County and a handful of other large cities and counties must begin to require a set of building techniques known as “low impact development” to control the polluted rainwater runoff.

These methods seek to intercept and cleanse the polluted runoff before it enters waterways. The techniques, many of which are comparable in cost to traditional development, include “rain gardens” to slurp up excess rain and porous concrete that allows the water to soak into the ground. More advanced forms significantly alter traditional development methods by leaving intact as much greenery as possible and limiting the amount of hard surfaces on a developed property.

Thursday’s ruling holds that Ecology’s agreement to allow Clark County to lessen requirements on builders came without a yardstick to know how whether the runoff is being controlled as legally required.

“This decision reinforces the importance of addressing the stormwater problem aggressively and with good science,” said Jan Hasselman of the Earthjustice law firm, which represented environmentalists in the case. “Stormwater is killing Puget Sound and other water bodies and the board made clear that local plans that add to this problem are going to be viewed with close scrutiny.”

Efforts to reach attorneys for Ecology, Clark County and the Building Industry Association of Clark County were unsuccessful. Ecology’s senior lawyer, Assistant Attorney General Ron Lavigne, hadn’t seen the ruling yet, said Kim Schmanke, an Ecology spokeswoman.

Ecology in 2007 adopted new rules to better control stormwater. But environmentalists appealed them, saying they didn’t go far enough because, among other reasons, they did not require the low-impact building techniques. In 2008 the pollution board – the first round of appeal for parties challenging Ecology-written regulations — ruled that the state’s largest cities and counties would have to require those building methods. The pollution board said smaller local governments eventually would have to do so as well.

Clark County in 2009 passed an ordinance that didn’t even meet the minimums Ecology proposed in 2007 – minimums that had already been rejected by the pollution board, Hasselman said.

The county also came up with a system that envisions taxpayers constructing stormwater-cleansing projects on public land and at public expense to control some of the pollution – the portion attributable to past development. Clark County left itself so much leeway on where and at what cost those publicly funded pollution-control projects would be built, without giving Ecology any role in the decision, that it amounts to the county regulating itself, pollution board members William H. Lynch and Kathleen D. Mix ruled.

“The Clark County programs leaves (sic) it to Clark County to decide which (pollution-control) projects will suffice,” the ruling says. “. . .  If Clark County  develops a list of 50 proposed (pollution-control) projects, nothing prevents Clark County from funding projects listed 45 through 50 in terms of suitability for (pollution cleanup) because those projects are less expensive.”

Ecology’s oversight is needed, the board ruled, to make sure the pollution-cleanup projects “are selected in a reasoned manner, free of political or bad faith influences.”

The program Ecology OK’d for Clark County is not supported by science showing it would clean up stormwater as required, the pollution board said.

Pollution Board Chair Andrea McNamara Doyle dissented from parts of the majority opinion, arguing that Clark County and Ecology worked out a system that satisfies the Clean Water Act in the expert judgment of Ecology’s stormwater regulators.

Citing ”deference to Ecology’s expertise in this area,” Doyle said the deal worked out between Ecology and Clark County and known as the “agreed order” appears to satisfy the Clean Water Act.

“The agreed order reflects a reasonable exercise of Ecology’s discretion, and there is no legal or factual basis upon which to conclude this approach is invalid,” Doyle wrote.

A major goal of the stormwater-control rules is to protect fish, and particularly salmon, which lay egg nests, or “redds,” on stream bottoms. When massive torrents of stormwater rush into a stream – sped along by cities’ hard surfaces — the eggs are often swept away or buried under the sand, where they fail to develop. At the same time, bugs eaten by fish are also dislodged from their hiding places and carried downstream. And the high flows cause a laundry list of other problems for fish and other stream-dwelling creatures, researchers have found.

Notably, Doyle’s ruling in dissent acknowledged that Ecology’s current rules don’t get the job done in ending those problems.

Both Ecology’s statewide rules and the special deal worked out with Clark County, she wrote, “will allow conditions that can scour redds within stream channels, cause severe siltation of redds, increase temperature that stresses and kills fish and their offspring, elevate sediment supply and suspended sediment, degrade natal habitat by changing stream channels, and deplete the food web upon which the (salmon) depend.”

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