Good Intentions Gone Bad — The High Cost of DOE’s Stormwater Permit

By Scott Anders
Fall 2012

Similar to the nonsensical, contradicting, and redundant situations faced by Milo Minderbinder and his cohorts in Joseph Heller's classic, Catch 22, the building community in Southwest Washington is about to face nonsensical and redundant requirements costing substantially more as a result of the Department of Ecology's new stormwater permit taking effect on August 1, 2013.

The new stormwater permit requires builders and developers to employ Low Impact Development ("LID") measures. In original design and intent LID uses various tools that treat stormwater close to where it originates at lower cost. Treating stormwater closer to the source allows for better filtration of the water and slower release so that the water is cleaner when it reaches the streams and so that it does not reach the streams all at once and overload those streams, which could cause turbidity issues.

Among LID tools and techniques are rain barrels that collect rainwater from gutters to be used later for irrigation; green roofs that treat more of the water onsite; rain gardens to absorb more water in a natural fashion and aid in slower release of stormwater; bioswales and different grading practices to more effectively channel, hold, and filter stormwater; and porous pavement, which lets water pass through the pavement and be absorbed by the ground below.

LID techniques also sought to reduce costs for many developments by eliminating certain items considered normal for developments, such as sidewalks and curbing in neighborhoods. Several demonstration or experimental projects touted the lower costs to developers and builders as well as the reduced costs on local governments who now have to treat less stormwater thereby lowering their costs. All of the cost savings plus cleaner water seems too good to be true.

And in Washington it will be too good to be true. Builders and developers need to build in the extra costs of LID to building projects instead of saving money because the new stormwater permit requires LID as well as the already required stormwater measures. Besides the cost of implementing both LID and current measures, builders and developers will see higher engineering, design, and legal costs as a result of the requirements of the new stormwater permit.

The example or test developments using LID did not have the Catch 22 redundancy that Washington builder and developers will face. Did Washington choose to forge down the redundancy path because of a lack of confidence in the performance of LID, did they opt for redundancy to try and make water "ultra" clean, or some other motive? No one but Ecology knows the answer for sure, but it is known that building and development projects will be saddled with the extra costs and headache that come with the redundancy in August.

Some LID techniques, such as rain barrels, will not likely bring extra costs. But porous pavement's recent history demonstrates that the pavement cannot withstand the ordinary use that it is subjected to in parking lots and sidewalks. Lawsuits over the disappointments of porous pavement are currently underway and progressing through the legal system.

The extra LID costs have yet to be specifically determined, but the estimates on an average project run from as low as 20% to as high as 40%. No doubt the extra costs will make some projects too expensive. In the comments it submitted prior to the permit approval, even the Washington Department of Transportation recognized that the implementation of the new stormwater permit would eliminate or severely curtail needed projects.

Planning now for these extra costs can help blunt some of their impact of the increases but it will not eliminate them. Careful planning may show that some projects may no longer be affordable. These costs will be required for retrofits and remodels as well.

A high level of environmental quality, particularly for air and water, is desirable for sure, but this permit does not bring about that happy result as a first glance might lead one to believe. Older buildings and developments would gain the most in terms of cleaner stormwater. But many older remodels and retrofits may not be done at all because of the new stormwater requirements. Builders and developers will have to charge substantially more because the costs of compliance are too high to just be absorbed. That means fewer projects and fewer jobs related to those projects.

It appears that the implementation of this permit was perhaps not well thought out; there is no indication that the community was seen as part of the environment even though everyone will bear the cost one way or the other.
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.