June 17, 2011

State caught in crossfire with proposed stormwater control rules

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How far should Washington go to rein in the largest source of water pollution fouling Puget Sound and many other water bodies in the state?

Friday is the deadline for the public to weigh in on a preliminary proposal by the Washington Ecology Department that is drawing fire from environmentalists as being too lax and from builders as being potentially super-costly. A second, formal public comment period will start this fall.

At issue is stormwater, the pollution-laced runoff that streams off the developed landscape after rainstorms, carrying a foul stew of pesticides, toxic metals, fecal matter and other pollutants. Washington is the first state in the nation where a judicial ruling forced state regulators to require builders to employ a series of green-building techniques known as “low-impact development.”

Now the Ecology Department has set out to determine just how much building methods will have to be adjusted to comply with the federal Clean Water Act, which the state administers. The ruling by the Washington Pollution Control Hearings Board requiring the changes says they must be employed “where feasible.”

But what does that mean?

 Does it require that almost every bit of rainwater be soaked up by sponge-like “rain gardens,” porous pavement, vegetated roofs and other “green infrastructure” techniques?

 Does it mean builders should just do the best they can, given the local terrain they’re building on?

 Or should developers have to go even further, mostly building up with multi-story construction instead of building out, so that a minimal amount of ground is covered, leaving intact most trees and other plants, along with native soil, to slurp up the stormwater?

Opinions vary. Ecology has advanced a tentative set of ideas based on the notion that the full-bore treatment isn’t likely to work everywhere.

“We’re saying here’s what you have to meet – you have flexibility as to how to do it,” said Bill Moore, head of Ecology’s stormwater-cleanup efforts. “I don’t want be in the position of dictating” building methods.

Even so, Moore said, the rules as proposed would in some places require builders to employ techniques such as porous pavement, or rain gardens, which are specially planted depressions, often positioned at the side of roads to catch the runoff before it can gurgle into a nearby waterway.

While such techniques are promising, they are not problem-free. For example, last year regulators, Seattle Public Utilities and residents of Ballard discovered that rain gardens can’t be built just anywhere.  Rain gardens constructed hurriedly using federal stimulus money ended up becoming small ponds instead of allowing the runoff to gradually soak into the ground as designed.

The reason? Soils in the area are “glacial till” – a type of ground that Moore compares to concrete that just isn’t very easy for water to soak into. Other areas where it might not be advisable to try to get water to infiltrate into the ground include places where the underground water table already is high – the water could start flooding basement and crawl spaces – and steep hillside slopes where too much water might cause a landslide.

For those situations, the tentative rules contemplate what are colloquially referred to as “off-ramps” – situations where builders won’t be held to as high a standard. Where, in other words, low-impact development just isn’t feasible, in Ecology’s opinion. 

For environmentalists, the proposed regulations seem likely to allow far too many developments to exit the stormwater-cleanup highway.

“This proposal is a disappointment in its current form,” said Bruce Wishart, lobbyist for the environmental group People for Puget Sound. “It needs a lot of work. It’s a small step forward but the department (of Ecology) has really failed to take advantage of the opportunity that was presented.”

Wishart said the rules should seek to maintain green spaces and minimize the amount of hard surfaces such as roofs and concrete that shed rainwater rapidly, “and Ecology has really dropped the ball in that area with this initial proposal.”

“In addition, I would say the proposal is riddled with loopholes and it would be very difficult to enforce in its current form, so there needs to be some improvement in that area as well,” Wishart said.

One of the harshest critics of Ecology’s stormwater-cleanup efforts is Tom Holz, an engineer and planner, who charges that the regulations Ecology is advancing “will preserve no forest, will not limit hardened surfaces, and will not limit discharge of rainfall to surface waters. “

Builders are concerned by what they’ve seen so far, said Allison Butcher, public-affairs director for the Master Builders Association of King and Snohomish Counties, even though she said the group is generally supportive of the concept of low-impact development.

For one thing, “It really doesn’t address cost, in any way,” Butcher said. In some cases, she said, it might be technically “feasible” to employ rainwater-capture techniques – but it would be so expensive that development doesn’t pencil out. Is that “feasible” for the developer?

“We’re concerned about dramatically increased engineering costs,” Butcher said.

Earlier drafts of Ecology’s ideas, shared with a panel of stakeholders such as builders, environmentalists and local governments, provided an exemption for projects that are less than one acre in most of the local jurisdictions that will have to enforce the rules, Butcher noted. That exemption was gone when the current version of Ecology’s thinking was shared with the public, Butcher noted.

“We’re concerned about creating such a burden on such small projects,” Butcher noted, adding that small municipalities may not have the requisite expertise on staff to pass judgment on whether building plans meet state requirements. That could entail extra costs for builders, taxpayers or both, she said.

As for environmentalists’ call for a whole new way of doing development, Butcher responded: “That’s too restrictive, too unrealistic, and doesn’t recognize that our region is growing and we need to accommodate future growth. That would go entirely too far.”

This initial 30-day round of public comment, which is not required under the law and Ecology considers informal, is to be followed by a more formal proposal in the fall that is legally required. Three months will be allowed for comment on that proposal, Moore said.

The proposal is at http://www.ecy.wa.gov/programs/wq/forms/lidspubcomments.html. Public comments are due by 5 p.m. Friday, June 17. That’s today.

InvestigativeWest is a Seattle-based non-profit newsroom covering the Pacific Northwest. To learn more and support in-depth, independent coverage of the environment, public health, social issues and other topics, please go to www.invw.org.

One thought on “State caught in crossfire with proposed stormwater control rules

  1. The description of a rain garden as a ditch, is not accurate, and the assumption that they can not succeed on slopes or glacial till is over simplified. References to positive rain gardens that work at High Point Development and their savings to the taxpayer would be useful to the reader.