Administrative action against county would hurt, not help the environment
Many of you have undoubtedly heard that the Rosemere Neighborhood Association in Vancouver, together with Columbia Riverkeepers and the Northwest Environmental Defense Center, has sued Clark County over its stormwater program, alleging violations of the Clean Water Act and millions of dollars in penalties.
Let's set the record straight. First, it is an administrative appeal to the Pollution Control Hearings Board that the neighborhood association filed, not a lawsuit. In order to bring a lawsuit, RNA would first need to win the Board's administrative appeal and all subsequent appeals of that decision through the court system. Only then would RNA be in any position to file a CWA lawsuit over the county's stormwater program.
Second, RNA's lawyer's statement that "Clark County is alone among the state's large counties in refusing to meet the new [pre-European flow control] standard" is misleading. According to the PCHB in a prior appeal involving related issues, many areas within the City of Tacoma and some areas in Bellevue and Everett are exempt from the new pre-European settlement flow control standard. Clark County does not qualify for the exemption because most of the development in Clark County occurred after the 1985 cutoff date for the "40 percent impervious" exemption. Since much of Clark County's development is more modern, it was done in a much more environmentally responsible fashion than our neighboring cities to the north, who have complied with the new standard by being mostly exempt from it.
Additionally, the pre-European settlement flow control standard that is at issue in the RNA appeal is in no way required by the Clean Water Act. In fact, the Ninth Circuit Court of Appeals once found that the Act imposes no particular flow control standard. Instead, it was the state Ecology Dept. that inserted the permit through the use of their discretionary power – instituting one of the most restrictive flow control standards in the U.S., in no way mandated by the Clean Water Act.
So, what is the impact of the pre-European settlement flow control standard? Picture this: a commercial development constructed prior to 1993 (when modern stormwater regulations were imposed across the state) would drain out a large pipe to the nearby creek or roadside ditch without any detention or metering of the outflow.
Under the 1993 standard, there would typically be a pond or underground tank to collect the rainwater on site with an outflow that might be as small as the size of a garden hose depending on the size of the site.
Under the pre-European standard, the garden hose sized outflow is reduced to the size of a pencil. The environmental benefits of going from a garden hose to a pencil are questionable at best, but the costs can be enormous.
Since 1993, development in Clark County has occurred under significant flow control standards, perhaps up to 90 percent of pre-European settlement levels. The problem is that the last 10 percent is exceedingly expensive and uses up a disproportionate amount of land, which leads to sprawl.
The Ecology Dept. is correct in that stormwater runoff is the number one cause of water pollution. But the way the agency went after the problem in the permit is backwards. Instead of going to the source of the problem – primarily old development with untreated uncontrolled runoff – Ecology decided to ratchet down even more on new development.
This will lead to marginal improvements at best because it does not address the problem of pre-1993 development with no stormwater control. A regional approach where stormwater facilities can be incorporated into a park or a natural area makes much more sense than constructing numerous storm prisons on each individual site.
Further, the Rosemere appeal is bad for the environment. If successful, the appeal would lead to sprawl since new developments would have to set aide a much larger portion of the land for a larger stormwater facility to hold all the rainwater while it is being trickled out.
If the Rosemere appeal is successful, then the County's program to fix the problems of the past may be put in jeopardy without an adequate funding source. That will lead to reduced improvement in habitat or water quality.
