June 18, 2014

I’ve Got the Stormwater Blues


By Jamie Howsley

Spring 2012

The late great blues artist T-Bone Walker once wailed, "they call it stormy Monday, but Tuesday's just as bad." As a land use attorney representing developers, I sympathize with dear old T-Bone. Just when the development community begins to get a handle on new rigorous stormwater regulations, the rules change and the targets move farther and farther away.

As our nation and region recover from recession, we return to a regulatory regime much different from the one we left in 2008. Local governments and even states threw developers, property owners, builders, and contractors a lifeline in the storm by extending approvals for projects to ensure that they could move forward once the recession receded. Even as we speak, the Washington Legislature is considering House Bill 2152, which would seek to extend vesting for plats granted preliminary approval before December 31, 2007, to nine years. And yet both Washington and Oregon's departments in charge of stormwater quality continue charging forward with increasingly stricter stormwater thresholds that impact a variety of land uses.

Oregon currently is in the process of updating National Pollution Discharge Elimination System ("NPDES") permits for industrial properties. In Oregon, there are approximately 775 facilities subject to NPDES Permit 1200-Z (i.e., facilities that discharge stormwater to water bodies other than those in the Columbia Slough watershed). These facilities must submit their renewal applications and updated stormwater pollution-control plans to the Oregon Department of Environmental Quality by March 31, 2012. And the 139 properties subject to the 1200-COLS (those in the Columbia Slough watershed) must already comply with new requirements. Both of these revised permits result from a settlement stemming from a lawsuit filed by Columbia Riverkeeper and the Northwest Environmental Defense Center.

These revised permits require stricter benchmark levels for copper, lead, and zinc. They also require the property owners to hire a qualified consultant to design a stormwater plan outlining if the benchmarks are not met and how additional remedies may be employed to achieve the benchmarks. Finally, the new permits require additional monitoring, sampling collection, and training of employees to ensure compliance.

Washington finds itself in an even more precarious situation. In 2008, during the appeals of the last Phase I municipal stormwater permits, Washington's Pollution Control Hearings Board ("PCHB") mandated that low impact development ("LID") be employed on all development sites where feasible. LID techniques include rain gardens, bioretention swales, green roofs, rain barrels, tree box filters, and permeable pavement. EPA and the Washington Department of Ecology tout LID as the best way to synthesize the natural environment by treating stormwater where it falls and having it infiltrate, filter, evaporate, or be stored as close to the source as possible. Washington is currently updating its Phase I and II municipal permits to comply with the LID mandate. Public comment on the new draft permit mandating LID closed on February 3, 2012.

The current Phase I and II municipal permit drafts would require pervious pavement on driveways, local access streets, and some collector level roads. And the new permits would require local governments to create extensive monitoring and inspection programs capable of entering private property to inspect the LID integrity.

These requirements come right on the heels of the 2008 permit that mandates required new developments (outside of those jurisdictions with the built-out exemption) to implement flow-control measures to forested or pre-European conditions. Clark County believed this standard posed a significant risk to lawsuits from the development community and therefore negotiated and entered an "Agreed Order" with Ecology, which allowed Clark County to make up the difference between the existing and forested conditions by constructing regional stormwater facilities. These facilities are also intended to provide the added environmental benefits of creating habitat areas and improving wetlands. The PCHB ruled against this Agreed Order despite testimony from Ecology, County staff and various experts that the approach of the Agreed Order could lead to a better environmental result. An appeal involving Clark County's program is currently at the Division II Washington Court of Appeals.

Portland's "green streets" program seeks to improve stormwater quality by retrofitting the existing built environment with LID improvements and educating the public about ways to reduce the stormwater leaving their properties. By creating or improving stormwater facilities in areas with no or substandard controls, Portland is demonstrating how to improve the overall health of our watersheds without placing the burden solely on new development as Washington is attempting to do. And retrofitting existing neighborhoods might provide added benefits of improving public spaces with more green space.

The Northwest's natural beauty attracts newcomers, and we want to protect that beauty. But if we seek perfection in the regulatory environment, we will create obstacles that put us at significant disadvantages with other states. By contrast, Portland's "green streets" program recognizes that cleaning up our region's water must extend beyond new development and seek to remedy decades of development in the existing built environment. Refocusing Oregon and Washington's efforts to retrofit existing areas rather than punishing new development and industry with overbearing regulations might achieve better environmental results without putting our region's economic competiveness in jeopardy, sparing us the stormwater blues every time it rains.

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.

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