Washington Judge Rebukes County for Violating Federal Clean Water Law

TACOMA, Washington, January 4, 2011 (ENS) – The development standards of a county in Washington state appear to violate federal clean water laws, according to a preliminary ruling by a U.S. District Court judge.

The decision, issued December 28, 2011 by Judge Ronald Leighton, means Clark County must comply with federal clean water laws to protect rivers, streams and salmon threatened with extinction. The county, located in the southwestern part of the state, includes the city of Vancouver, population 161,800.

The ruling applies to development projects permitted or approved by the county on or after the court’s order while a related state court appeal is pending.

Stormwater outfall in Vancouver, Washington (Photo courtesy Rosemere Neighborhood Association)

Rosemere Neighborhood Association, Columbia Riverkeeper, and the Northwest Environmental Defense Center, represented by the nonprofit environmental law firm Earthjustice, challenged Clark County’s failure to protect threatened salmon.

“Many cities and counties in our state are working hard to clean up polluted waterways and now Clark County must finally do the same,” said Janette Brimmer, an Earthjustice attorney who is representing the groups. “The ruling recognizes that everyone needs to do their share to protect our precious streams, rivers and salmon and that Clark County, like everyone else, must follow the law.”

Last year, the neighborhood and conservation groups prevailed before the state Pollution Control Hearings Board, which hears appeals of state environmental regulations and permits.

In January 2011, the Board rejected Clark County’s “alternative” plan for managing polluted stormwater runoff finding that it violated the County’s stormwater permit and was too weak to prevent harm to already stressed rivers and streams.

The county’s plan was developed in a compromise with the Washington state Department of Ecology, which oversees the federal Clean Water Act. Stormwater runoff is a major source of water pollution because it contains toxic metals, oil, grease, pesticides, herbicides and bacteria that run off pavement into streams and rivers.

Clark County refused to implement the required development runoff standards. After finding Clark County in violation of its stormwater permit, the Department of Ecology yielded to county pressure and agreed to allow Clark County to retain inadequate stormwater standards for development in exchange for a promise to implement taxpayer-funded mitigation projects.

As noted by the federal court, the Board had found the program to be illegal in several respects. The Clark County program:

  • is not based on any science and fails to protect water quality and salmon.
  • unlawfully exempts development projects that “vested” prior to April of 2010.
  • unlawfully allows Clark County to shift resources from its existing retrofit program to mitigate for new development.
  • unlawfully fails to require “low impact development” at new development and mitigation sites.

Clark County appealed the Board decision in state court and refused to comply with the Board’s decision, forcing clean water advocates to take the matter to the U.S. District Court for the Western District of Washington to enforce the federal Clean Water Act.

Judge Leighton’s preliminary ruling agreed that the clean water advocacy groups have demonstrated a likelihood of success on their claims that Clark County’s inadequate development standards for polluted runoff violate the Clean Water Act and that irreparable harm to the environment is the result.

The judge therefore imposed an obligation on the county to follow the original requirements of its stormwater permit – the same requirements with which more than 100 other cities and counties in western Washington have been complying since 2008.

“Our association applauds the judge’s order because it reinforces that we need to do everything we can to stop undermining water quality,” said Dvija Michael Bertish of the Rosemere Neighborhood Association. “Clark County has ignored the public’s concerns about stormwater violations and we hope the court’s decision will bring the county back into compliance with the law in order to protect the water and endangered species.”

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