Seattle, WA —

The Washington Pollution Control Hearings Board has found provisions in Ecology’s “Phase II” municipal stormwater general permit to be legally inadequate. The permit regulates stormwater controls in 85 cities and portions of several counties around Puget Sound. In the ruling, the Board affirmed its landmark August 2008 ruling that the largest Puget Sound cities and counties had to take significantly more aggressive steps to reduce stormwater runoff, including mandatory use of “low impact development” techniques. While finding that the smaller Phase II cities and counties did not need to immediately mandate the default use of LID as the Phase I jurisdictions do, the board concluded that Ecology needed to do more to implement LID in the near future in these areas.

“The board effectively affirmed what we all know to be true: existing stormwater programs are not adequate to meet our shared goals of protecting and restoring the health of Puget Sound by 2020,” said Sue Joerger of Puget Soundkeeper Alliance. “Its time to aggressively implement stronger controls before more damage is done.”

Stormwater — runoff from roads and rooftops that is discharged to the rivers, streams and lakes that feed Puget Sound — has been cited as the number one threat to the health of Puget Sound. Stormwater contains toxic metals, oil and grease, pesticides and herbicides, and bacteria and nutrients. Recent research of stormwater runoff from industrial areas and highways indicate that when it rains, toxic metals, particularly copper and zinc, are being discharged in amounts that seriously degrade water quality and kill marine life. Stormwater volumes also erode stream banks, deposit sediment, and widen channels enough to damage fish and wildlife habitat. Some studies show urban creeks to be so degraded that adult salmon are killed within minutes of entering the stream.

The board affirmed its previous ruling the permit’s focus on traditional engineered stormwater management facilities like detention ponds was inadequate to protect Puget Sound and meet the law’s requirements, and that greater use of low impact development techniques — reduced impervious areas, greater protection of native vegetation, and onsite stormwater management — would be necessary. However, the board decided not to require immediate use of LID as a default technique wherever feasible, opting instead for a suite of measures to phase in greater use of LID in these smaller jurisdictions during the remainder of the five year permit term. 

The board ordered Ecology to set forth “additional requirements with respect to broader use of LID during this permit term, and in anticipation of the next.” [Order, at 47] Specifically, the board directed Ecology to amend the permit to:

• require the identification and elimination of barriers to implementing LID
  
• require the identification of LID practices that can be implemented immediately
  
• require the establishment of goals and metrics to “identify, promote, and measure” LID use, including schedules by which Phase II jurisdictions will require such techniques.

“The Puget Sound Partnership, the National Academy of Sciences, the U.S. EPA, and countless other scientific bodies are telling us that we need to dramatically change the way we manage stormwater,” said Kathy Fletcher, Executive Director of People for Puget Sound. “The region should begin aggressively implementing the most effective practices immediately.”

“The future of Puget Sound is at stake,” said Jan Hasselman, an attorney for Earthjustice who represented the groups. “While the board gave the Phase II jurisdictions more flexibility in the timing, there is no doubt that the region will have to transition to much greater reliance on low impact development and better land use planning. There’s no more excuse for delay.”

The board ruled against the environmental appellants on several other challenges, including the permit’s coverage area, the regulatory thresholds, and the lack of monitoring. No decision has been made on appeals.

Read the order (PDF)