New regulations from the Washington State Department of Ecology have stirred the waters of the development community, causing an eddy of unrest.
New development and redevelopment projects must meet the “pre-European settlement” mandate. In a nutshell, completed projects must control the flow rate of stormwater run-off so it does not exceed the rate generated by the same piece of property in an untouched, forested state – a regulation that has the potential to increase detention pond sizes by a factor of six, said Steve Madsen, government affairs director at the Building Industry Association of Clark County.
Although objections to the new flow-control regulations range from “it’s unscientific” to “it’s not fair,” the main criticism of the flow-control regulation is that it has the potential to kill development and redevelopment in the county, said Eric Golemo, owner and director of engineering at Sturtevant, Golemo and Assoc., a Vancouver planning and civil engineering firm.
“No one disagrees that we need to protect our environment and natural resources,” said Tim Leavitt, director of engineering services at PBS Engineering and Environmental and a Vancouver City Council member, “But what is reasonable?”
A bevy of hardships
Infiltration is one way developers reduce the rate at which stormwater run-off leaves a property. But much of Clark County has tight clay soils that don’t infiltrate well. North County also has a high water table, which limits infiltration.
“These regulations affect more than a quarter of the sites that could be developed in the county,” Golemo said.
If infiltration is impossible, one remaining option is a detention pond. For most projects, meeting the new flow-control regulation would increase the needed property size by one-third, leading to an expanding urban growth boundary, more roads, more traffic and, ironically enough, more stormwater run-off.
It also discourages redevelopment projects which may not have room for larger detention ponds, Golemo said.
A modest proposal
Recognizing the potential impact of the new flow-control regulation on Clark County development, and in turn on the county’s economy, the Clark County Board of Commissioners formed a Stormwater Stakeholders Committee, consisting of public and private entities, environmentalists and development interests.
James Howsley, a partner and land use attorney at Miller Nash, along with Golemo and Madsen, served on that committee.
“The board did a good job of balancing interests,” Howsley said.
The committee prepared an alternative proposal, submitted to the DOE in mid-January, said Pete Capell, Clark County Public Works Director. Capell said the county’s proposed ordinance used the current flow rate as the benchmark, instead of the “untouched forested” flow rate.
“We lowered the standard for flow control,” Capell said, “but we compensate by committing to retrofit some prior development, so the net is the same.”
The DOE has not given any formal response yet, but there is some hope. Kitsap, Thurston, Skagit, Whatcom and Cowlitz counties won an exemption from the state’s Pollution Control Hearings Board on Feb. 3. Battle Ground, La Center, Washougal and Ridgefield are already exempt, due to their small populations.
One rationale for a countywide exemption is based on the fact that much of the county has been cleared and farmed for 100 years, Leavitt said. Local streams are accustomed to higher flow rates than those proposed by the DOE, making the untouched forested metric invalid for the county, he said.
In addition, some of the streams that are of primary concern to environmentalists, such as Burnt Bridge Creek, didn’t even exist when Lewis and Clark came through.
“Burnt Bridge Creek is essentially a manmade stormwater facility,” Golemo said. Therefore, although it has habitat that should be protected from harm, it should be excluded from the DOE’s excessive flow control requirements, he said.
Vancouver in a bind
The city of Vancouver has yet to adopt the DOE ordinance or submit an alternative. But experts agree the city could more easily meet the requirements without modification. For example, much of Vancouver is on gravelly soils that infiltrate well, Golemo said. Plus, there is access to the Columbia River.
However, not everyone is happy with the city’s approach to stormwater. Madsen said that although it was theoretically possible for Vancouver to channel 60 percent of its stormwater to the river in the next 50 years – if tens of millions of dollars are found to build a collection facility – the city can’t produce a comprehensive map of the storm drains right now.
On Dec. 9, Howsley and other concerned developers and land use attorneys wrote a letter to the city, enumerating their concerns about the city’s position on the stormwater regulation issue.
The concerns included a shortened public process that did not comply with the Growth Management Act; a lack of State Environmental Policy Act review; and statements by city officials that they might not consider projects vested, even if they were already in the permitting process – which might require those projects to return to the drawing board to meet new run-off ordinances.
Howsley said it is possible the city is leaving itself open to legal challenges presented to the Growth Management Hearings Board, as well as regulatory takings lawsuits from developers.
These lawsuits, said Steve Morasch, a land use attorney and shareholder at Schwabe, Williamson and Wyatt, would be based on the idea that the regulations were “trying to get new developers to shoulder the burden of existing development that occurred before any regulations were issued” – or, as Golemo phrased it, “to fix the sins of the past.”
Loretta Callahan, spokeswoman for Vancouver’s Department of Public Works, said there will be a public process. She posted the city’s proposed stormwater ordinances to its website on Feb. 11, and the first reading will be held on Feb. 23. The second reading and public hearing will be held March 2. The city’s ordinances are “written so legislative or DOE updates can be incorporated automatically,” Callahan said.
Golemo summed up his view of the stormwater run-off showdown this way: “You have to balance the environment and the economy – the needs of people versus fish. You can’t use blinders.”
RUN-OFF BY THE NUMBERS
According to a document published by Washington State University Clark County Extension, the Clark County Clean Water Program and the Clark Conservation District, every 100 square feet of impervious surface generates 62 gallons of water for every inch of rain.
For example, if a new development project that included 5,000 square feet of impervious surface was located in Vancouver, which gets about 37 inches of rain per year, that translates to up to 114,700 gallons of run-off every year from the impervious surfaces.
Yacolt gets closer to 70 inches of rain per year – meaning a new development project might generate 217,000 gallons of run-off per year.
Pervious pavements, rain gardens, green roofs (which are planted with grass and other vegetation) and other low-impact development techniques can reduce the amount of run-off.
In a study conducted by the University of Pennsylvania, the peak discharge rate from a green roof was only a quarter of that generated by a conventional roof.
In one Mississippi study, as-built run-off volume was about three times the predevelopment rate. Simple LID practices reduced the volume by a third and multiple LID measures reduced the volume to well below the predevelopment volume.
An EPA report summarizes 17 case studies of developments in the United States and Canada where LID practices were used. In most cases, implementing well-chosen LID practices saved money – total capital savings ranged from 15 to 80 percent. However, it should be noted that there are unique challenges to applying LID techniques in the Pacific Northwest due to distinct wet and dry seasons coupled with the fact that plants utilized in many LID techniques are dormant during our wet period. The best functioning LID’s in our climate utilize infiltration such as pervious pavement, but these also have maintenance concerns.