Trial Begins Challenging Loopholes in Washington's Building and Polluted Runoff Rules

Outcome likely to have statewide importance


Jan Hasselman, Earthjustice, (206) 343-7340, ext. 25


Dvija Michael Bertish, Rosemere Neighborhood Association, (360) 281-4747


Brett VandenHeuvel, Columbia Riverkeeper, (503) 348-2436


Mark Riskedahl, Northwest Environmental Defense Center, (503) 768-6673

Trial begins today in a case examining Clark County’s failure to comply with laws limiting storm water pollution designed to protect rivers and streams. The proceeding also raises issues of statewide importance, including the question of whether the state vesting law should override efforts to protect rivers, streams and Puget Sound.

The state vesting law allows developers to build projects under whatever rules are in place when they file a development application. This lets developers avoid any new rules that may be adopted later, even if the rules are adopted before anything is actually built. In most other states, the rules don’t lock-in until later in the permitting process.

“The state’s vesting law is a barrier to managing growth,” said Earthjustice attorney Jan Hasselman. “It allows developers to use antiquated rules that undercut efforts to save Puget Sound and the Columbia River and make other waterways healthier.”

The public interest law firm Earthjustice, on behalf of three conservation organizations, is asking the Washington State Pollution Control Hearings Board to throw out a recent agreement between Clark County and the Washington Department of Ecology. Local residents and clean water advocates argue the state authorized inadequate development standards that will generate illegal storm water pollution.

“We need to do everything we can to stop undermining water quality,” said Dvija Michael Bertish of the Rosemere Neighborhood Association, one of the appellant groups. “Clark County’s continued refusal to comply with state storm water requirements is unfair to other cities and counties that are working hard to clean up our polluted waterways. It’s also a bad deal for taxpayers because it transfers the burden of mitigating storm water from developers to the public.”

Storm water—runoff from developed areas containing a toxic brew of metals, grease, pesticides and herbicides—is the number one water quality problem in Puget Sound. The Environmental Protection Agency recently released a startling report on toxics in the Columbia Basin, which identifies storm water as a leading cause of toxic pollution in the Basin. When storm water runs off parking lots, buildings, and other urban development, it carries toxic metals, particularly copper and zinc, which harm salmon and other aquatic life.

In early January, the Department of Ecology agreed to allow Clark County to retain inadequate storm water standards for new development in exchange for a promise to implement county-funded storm water mitigation projects.

However, Clark County is already required to implement these projects under federal law. Additionally, the agreement allows Clark County to mitigate new development anywhere in the county, up to three years after the development occurs.

“Heavy metals and toxics in storm water harm Columbia River salmon,” explained Brett VandenHeuvel, Executive Director of Columbia Riverkeeper. “We need our state and Clark County to comply with the law to protect the people, communities, and economies that rely on Columbia River salmon.”

“Our state and counties should be taking the lead when it comes to mitigating polluted storm water runoff,” said Mark Riskedahl of the Northwest Environmental Defense Center. “Instead, Clark County is doing the opposite because its storm water plan does little to protect water quality and endangered species like salmon.”

Federal law required Clark County to adopt new rules governing runoff from development by August of 2008. Rather than comply with Clean Water Act requirements, the county knowingly adopted a significantly weak flow control standard for new development. While the Department of Ecology initially sought to bring an enforcement action against the county, it later agreed to let it retain the insufficient standards.

The appealing groups include Rosemere Neighborhood Association, Columbia Riverkeeper, and the Northwest Environmental Defense Center. They are represented by attorneys Jan Hasselman and Janette Brimmer of Earthjustice.

About the Pollution Control Hearings Board
The Pollution Control Hearings Board acts like a court for appeals of state environmental regulations. The three board members hear appeals from orders and decisions made by the Department of Ecology and other agencies as provided by law. The Board’s function is to provide litigants a full and complete administrative hearing as promptly as possible followed by a fair and impartial written decision based on the facts and law. The Board is not affiliated with the Department of Ecology or any other state agency. The Board consists of three members, who are appointed by the governor and confirmed by the State Senate for staggered six-year terms.

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