Ever since the environmental movement gained national support in the 1970s, government has struggled to protect the environment while still promoting economic growth. The latest battlefield where these two often opposing interests have collided is the regulation of stormwater runoff in urban areas. The new state stormwater runoff rules, issued by the Department of Ecology (DOE), require municipalities throughout the state to develop and administer local guidelines and monitoring programs for stormwater runoff.
Although environmental groups complain that the new rules are not nearly strict enough, builders and developers point out that local governments and the state already regulate stormwater runoff, and this new set of regulations seems redundant and oppressive. The new stormwater regulations also have the potential to conflict with existing regulations and to drive up the cost of housing. On the other hand, local governments are unhappy with the new state regulations because they create additional expense in running another state-mandated program.
All sides agree that stormwater must be handled appropriately. Urban development is characterized by many “impervious” surfaces, such as rooftops and parking lots, that create stormwater runoff, rather than allowing the water to infiltrate into the ground. Oil drippings from cars and other pollutants can accumulate on these impervious surfaces and be carried off to streams and rivers with the stormwater when it rains. Other sources of pollutants include fertilizers, pesticides and pet waste that can run off people’s lawns during storms. Stormwater runoff is the state’s largest source of urban water pollution and must be dealt with responsibly. The question DOE is struggling with is how to accomplish that without sacrificing economic prosperity or affordable housing.
No one is happy with DOE’s current solution. The details of the new rules are specific and complicated, but the focus is on on-site inspections during construction. Each builder must hire an on-site erosion specialist to oversee construction with weekly (or sometimes daily) inspections, take water samples and complete lengthy paperwork. In addition, local governments must also conduct multiple on-site inspections. All of this adds up to significantly increase the cost of construction projects, as well as additional administrative costs for local governments.
For builders and property owners, the new rules add significant costs to construction projects, as well as adding another step to the development process by requiring local municipal permits before breaking ground. In many instances these permits will be redundant with DOE’s state permits. Although DOE admits that these regulations overlap, builders still must obtain both state and local permits before beginning construction. Depending upon how cities implement the new DOE rules, there is the potential that the regulations will contradict one another, creating a regulatory Catch-22.
The new DOE rules don’t begin to go into effect for another year. In the meanwhile, local governments are struggling to figure out how to implement the new rules and hoping that the rules will be modified through the appeals process before they go into effect. Local governments, including Clark County and a coalition of municipalities that includes Vancouver and Camas have appealed the new DOE rules to the Pollution Control Hearings Board. Environmental groups have also filed appeals, claiming the new rules are not strict enough. Those appeals won’t be heard until April of 2008.
These stormwater appeals won’t be resolved for at least a year, creating uncertainty in the marketplace about how stormwater will be regulated in future development projects. The only thing that is certain is that stormwater is rapidly emerging as one of the thornier issues for builders and property owners.
Steve C. Morasch can be reached at 360-905-1433 or smorasch@schwabe.com.
