Under a lopsided deal reached in early January 2010, the Washington State Department of Ecology (Ecology) agreed to allow Clark County to retain inadequate stormwater standards for new development in exchange for a promise to implement county-funded stormwater mitigation projects. In February 2010, Rosemere Neighborhood Association, along with Columbia Riverkeeper, and Northwest Environmental Defense Center, appealed Ecology’s special deal with Clark County to the State Pollution Control Hearings Board in an attempt to repeal Clark County’s faulty stormwater management plan. The three conservation groups also filed a 60-day Notice of Intent to Sue Clark County in federal court for violations of the Clean Water Act. Earthjustice, a public interest law firm, represents the three conservation groups in these legal challenges.
Local residents and clean water advocates argue Washington State authorized inadequate development standards in Clark County’s stormwater permit that will generate illegal stormwater pollution, and that the stormwater pollution will also harm endangered species of salmon and their habitats.
Clark County’s Phase I municipal stormwater permit is issued under the National Pollutant Discharge & Elimination System program (NPDES) and is administered by the US Environmental Protection Agency. In turn, EPA defers management and enforcement of the federal stormwater management permit to Ecology. In the appeal, Rosemere et al cite that Ecology is not properly enforcing the federal stormwater permit.
In June 2010, The National Marine Fisheries Service (NMFS, part of the National Oceanic and Atmospheric Association) issued public comments on Clark County’s alternative municipal Phase I stormwater permit. Clark County is home to 15 endangered species of salmon, steelhead, smelt and sturgeon. NMFS states that Clark County’s stormwater plan will not meet required goals to protect these fisheries and concludes that “adverse effects to listed (endangered) salmon will be significantly increased.” Stephen W. Landino, the Washington State Director for Habitat Conservation, states that NMFS “strongly encourage(s) the EPA to object to the issuance of this (Clark County) permit.”
To read the NMFS comment letter, please click here.
The NMFS letter cites many of the same technical concerns raised by Rosemere et al in opening legal briefs filed with the State.
Under a cooperative working agreement between the two federal agencies, EPA has until July 21, 2010 to determine how it will respond to the technical deficiencies found by NMFS within Clark County’s plan. As the permitting agency, EPA has the authority to revoke Clark County’s stormwater permit, and require the County to revise and implement a permit that meets all regulations.
On June 16, 2010, appellants Rosemere et al offered oral arguments on how Clark County’s plan wrongly allows vested building permits to circumvent stormwater management regulations. One member of the Pollution Control Hearings Board stated that Ecology had “muddied the water completely” in regard to its approval of the Clark County plan.
The formal hearing date for the Rosemere et al appeal is currently scheduled for late September 2010. The Pollution Control Hearings Board will issue a decision on the vesting question in the coming months.