Wednesday, January 11, 2017
STORMWATER RISING: The Washington State Supreme Court continues to strengthen and clarify water standards.
Last week, the high court declined to hear the appeal of a Skagit County water rights decision. Skagit had denied a building permit because the water source was in conflict with a state rule requiring water be left in streams to protect fish. Lower courts had upheld the county’s authority to make land-use decisions based on the availability of water, and their ruling stands.
It is a mirror of a decision handed down by the state Supreme Court last fall, which found Whatcom County had not sufficiently exercised its authority to protect instream flows. Denial of further review in the Skagit decision sends clear signals the high court is not likely to reconsider its finding against Whatcom.
In another decision earlier this month, the Supreme Court overturned a lower court finding that state “vesting” law does not apply to clean water standards. Justices unanimously rejected an effort by counties and developers to weaken a key permit designed to reduced toxic runoff and protect waterways including Puget Sound.
The high court ruled that state vesting laws can’t undercut clean water standards that local governments must adopt as part of the federal Clean Water Act and parallel state laws. Under the state’s generous vesting doctrine, development projects can apply regulations in place at the time of the project application, even if they are not built for years or even decades later. The doctrine has been a major impediment to adopting best available science standards and advances in responsive development practices that can emerge in the intervening years between when a project is proposed and when it is built.
Together, the decisions strengthen Ecology’s rulemaking authority—with the caveat that local governments, not Ecology, are responsible to enforce water quality standards. And they suggest state courts mean to vigorously enforce efforts to clean and protect the state’s waterways, even if that effort curtails a development right.
Stormwater runoff is a toxic brew of rainwater that drains off streets, parking lots and other surfaces, carrying motor oil, pesticides, fertilizers, and other urban residues into nearby streams, rivers, and marine waters. It is the major source of pollution in Puget Sound. The pollution kills salmon, damages shellfish beds and threatens our drinking-water supplies—its concentrations in the food web may even be a contributor to the decline of Salish Sea resident orca populations, which crashed alarmingly in 2016.
In 2008, in a challenge led by Puget Soundkeeper Alliance, the state Pollution Control Hearings board (PCHB) overturned the state permits, and held that federal and state law required green infrastructure or “low impact development” (LID) approaches to new and redevelopment throughout Western Washington. Green infrastructure, like rain gardens, treats rainfall where it lands, keeping runoff out of the sewers and pollution out of Puget Sound. It is a highly effective, and cost-effective, approach to managing toxic runoff, attorneys for EarthJustice argued in their brief. EarthJustice is a nonprofit environmental law organization.
The 2012 permit—which made LID mandatory in Western Washington for the first time—was issued after several years of technical and policy input from stakeholders, but was appealed by regulated municipalities and developers.
In 2013, the pollution control board rejected those legal challenges and upheld the permit. King County, Snohomish County, and the Building Industry Association of Clark County sought appeal of that decision based on a single issue: whether the state vesting law allows developers to “lock in” outdated development standards for all time. The PCHB had comprehensively ruled that standards issued under a stormwater permit are not subject to state vesting law.
Last January, the state Court of Appeals in a divided opinion reversed the PCHB on the vesting issue.
“The public interest is subverted if a vested right is too easily granted,” the state Dept. of Ecology argued in their petition for review. “In this case, the Court of Appeals majority subverted the public’s interest in clean water by expanding the vested rights statutes to include the right to avoid stormwater pollution controls imposed by the state of Washington to ensure that stormwater discharges from municipal stormwater systems comply with both state and federal water pollution control statutes.”
The high court agreed; and on further review rejected the Court of Appeals ruling and reinstated the PCHB decision, holding that the requirements of a state water pollution permit are not subject to state vesting law.
The decision settles a dispute that has spanned nearly a decade and provides a platform for Ecology to further improve water pollution technologies in the next iteration of permit expected in 2018, EarthJustice noted in a press release.
“The legislative history and our precedent demonstrate that the vesting statutes were intended to restrict municipal discretion with respect to local zoning and land use ordinances,” justices noted in their decision. “Because state and federal law direct the permittees to implement the stormwater regulations at issue in this case, the regulations are not the sort of local municipal land use and zoning ordinances the legislature was concerned with. Indeed, the legislature’s actions with regard to implementation of Ecology’s LID techniques make it clear that the vesting statutes do not preclude compliance with the 2013 permit.”
“No party disputes that stormwater controls are essential to ensure compliance with the federal Clean Water Act and state Water Pollution Control Act, Ecology noted in their brief. “No party appealed the board’s conclusion that the stormwater controls… are necessary to meet the requirements of federal and state water pollution laws. The only issue is the timing requirement for implementation of the stormwater controls… thereby allowing some development projects to proceed without the stormwater controls necessary to meet the requirements of federal and state water pollution laws.”