October 31, 2013

Reflections from the NPDES Phase I Municipal Stormwater Permit Appeal – The Spooky Halloween Post


On Thursday, October 24, after three weeks of testimony on the Phase I permit (and some issues from the Phase II permit), the trial at the Pollution Control Hearings Board concluded.  Clearly, stormwater management in Washington is a very complicated issue.  Having participated in the trial, I have some observations and thoughts regarding the case.

First of all, there are clearly practical issues with the Phase I permit when all of the jurisdictions required to adopt ordinances in accordance with the permit either directly challenged it or intervened to ensure that the permit did not get stricter, as in the cases of Seattle and Tacoma.  We heard several days of testimony from various jurisdictions worried about the long-term maintenance costs associated with some of the requirements of the permit (i.e., permeable pavement, biorention, and rain gardens) and the potential chilling effect that the new regulations derived under the permit could have on new development, especially redevelopment projects.

Second, it is startling that more Washington business groups like the various chambers, ports, the Association of Washington Business, or commercial real estate development interests did not get involved in this case.  If the permit is upheld, it requires local governments to adopt land development regulations that will create additional costs not only in additional design and construction costs for specialized materials like pervious pavement, but also long-term maintenance costs.  There are also hidden costs contained in the permit not readily picked up even by the most astute reader.  One requirement would require a developer to conduct onsite infiltration testing only during the wet season.  If you purchase your property in late spring or summer and plan to move swiftly through the entitlement process, you will be surprised to learn that you will have to wait until winter before you can even think about starting a project.

Third, there is an almost cavalier attitude towards this “grand experiment.”  Ecology fully recognizes that there are going to be failures of stormwater systems and yet their attitude seems to be that it will be in the furtherance of developing the technology.  As a developer’s representative this attitude scares me, especially because it is not Ecology or the local government that will be dragged into court by homeowners, businesses, or even the own local government’s code enforcement for failing systems.

Finally, while we can all agree that protecting water quality is very important, it cannot be the sole isolated function that governs land development.  There are other statutes that regulate how we do land development in Washington, including the Growth Management Act, Shoreline Management Act, platting and subdivision statute, Planning Enabling Act, SEPA, Forest Practices Act, critical area regulations –   the list goes on and on.  What I saw here is a very serious attempt to elevate water quality regulations, somehow above all of the other conflicting requirements around land development.  The goal should essentially be to harmonize all of the regulations.  If we make it too hard to redevelop a site because of new onerous water quality land use regulations, it makes it not only that much harder to fulfill GMA’s goal of encouraging infill development, but actually undermines the  goal of trying to encourage sites without stormwater controls to redevelop with even some stormwater controls.

Of course these are just my thoughts and observations.  I am curious to learn what others think.  Please send me your comments or questions.

Back to Top