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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By James Howsley
Winter 2014

In August 2012, the Washington Department of Ecology (“Ecology”) announced the final NPDES Phase I permit, implementing prior direction from Washington’s Pollution Control Hearings Board (“PCHB”) to require low impact development techniques (“LID”) where andwhen “feasible.”  Under condition S5.C.5.b of the new permit, Phase I jurisdictions must “review, revise, and make effective their local development related codes, rules, standards, or other enforceable documents to incorporate and require LID principles and LID best management practices.”  Yet both the jurisdictions required to implement the LID requirements and the development community remain wary of implementing such radical changes on a statewide basis without a better understanding of the long term implications, particularly regarding maintenance costs. 
 
LID techniques attempt to mimic the natural pre-developed environment by attempting to return much of the rainfall to the ground where it falls, rather than treating it in some other medium and then discharging it to a pipe where it eventually joins a stream, lake, or area where it eventually infiltrates. The 2013 permit specifies preferences for LID techniques in the following order; permeable pavement, bioretention, rain gardens, dispersion, and then other methods. 
 
However, between the draft permit circulated for comment earlier in 2012 and the final permit, critical language changed and Ecology neglected to address concerns by the municipal permittees and the private sector, including BIAW and several local associations. This resulted in all of the Phase I permittees (King, Snohomish, Pierce, and Clark counties, as well as the cities of Seattle and Tacoma) challenging various aspects of the final permit.  The BIA of Clark County, with support from BIAW and NAHB, also filed a challenge seeking modifications to the permit as developers and home builders will ultimately bear the costs for many of the requirements from land use regulations derived from the new permit. 
 
Despite various examples of failed permeable pavement projects, including several high profile failures in Clark County and in Bellevue,the PCHB issued its decision in the case on March 21, essentially affirming most aspects of the permit.  The PCHB deemed permeable pavement a feasible low impact development technique except on “heavily traveled roads.”  Ecology must now modify the permit to clarify to which types of roads the permeable pavement requirement will apply. 
 
What does this affirmation of the permit mean for the development community?  First, it means that the Phase I jurisdictions must submit draft code language implementing LID into their stormwater codes to Ecology for comment by June 30, 2014.  By June 30, 2015, Phase I’s must begin implementing LID into their land use regulations.   Phase II jurisdictions – those with a population over 10,000 – must implement LID into their codes by December 31, 2016, coinciding with the next Growth Management Act Comprehensive Plan update.  
 
Second, Ecology will modify the permit to address the successful areas of challenge.  We expect Ecology to work with the permittees and the BIA in developing the modifications.    
 
Snohomish County will pursue an appeal and BIA of Clark County may follow suit as to whether or not stormwater regulations can be vested, an issue initially decided by the PCHB in early summary judgment motions. 
 
Finally, it will be  fascinating to see how the development process plays out. In their briefing and at oral arguments, Pierce County highlighted emails from Ecology staff stating that the new implementation of LID would be “...a huge leap forward knowing there would be spectacular failures” of stormwater systems.  If these failures start occurring and creating liability not only for the public sector, but the private as well, we could see swift legislative action to attempt to reign in some of the regulations. 
 
The use of LIDs will not only change the landscape of the built environment, but will also require businesses and developers to change pro-formas to consider the short and long term costs associated with LID.  This is made increasingly complex by the fact that some LID techniques may be implemented on individual lots, while functioning to serve the whole development. Builders should start educating themselves fully in all aspects of LID, as it is here and here to stay. 
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.