Clark County’s development standards violate state and federal laws to protect clean water, according to a ruling by the state Pollution Control Hearings Board.
The board rejected the county’s controversial plan for managing stormwater runoff.
The plan had been developed in a compromise with the Department of Ecology, which oversees the federal Clean Water Act.
It was challenged by the Rosemere Neighborhood Association, Columbia Riverkeeper and the Northwest Environmental Defense Center, represented by Earthjustice. The opponents said the plan did not go far enough to prevent significant harm to the county’s rivers and streams and that the county couldn’t prove that it would adequately protect water quality and salmon.
The matter was argued during a four-day hearing last fall.
The Pollution Control Hearings Board, which hears appeals of state environmental regulations, agreed with the county’s critics.
Stormwater runoff is federally regulated as a major source of water pollution because it contains toxic metals, oil, grease, pesticides, herbicides, bacteria and nutrients that run off buildings and pavement into fish-bearing streams.
An attorney for Earthjustice said the opinion gives Clark County the potential to become a state leader in protecting water.
Kevin Gray, the director of Clark County’s Department of Environmental Services, said he read the opinion as the Pollution Control Hearings Board wanting to hold Clark County to a higher standard than any other county.
The ruling said that the board members “recognize that the mitigation projects selected by Clark County could potentially adequately mitigate for historic flow control impacts and provide equal or better environmental protection for beneficial uses than the default standard in some instances.”
“There is, however, neither a requirement in the (agreed plan with Department of Ecology), nor a guarantee this will occur, and Ecology does not have the information that this will occur,” the ruling said.
Gray said doing studies to show the county’s efforts are working could take millions of dollars.
“We continue to believe the county’s approach provides the most effective approach to stormwater management,” Gray said. “The Pollution Control Hearings Board recognizes that (the county’s plan) can provide equal or better protection for the environment. It’s apparent that they are looking for guarantees or requirements that would ensure those benefits.”
Gray said he had yet to discuss the ruling with the county’s attorneys to review the county’s options.
It will be up to the county commissioners to decide if the county should try to fight the ruling in court, Gray said.
Attorney Jan Hasselman from Earthjustice said the county should accept that it’s in violation of the law.
“Our view is that it’s time to set aside the legal wrangling and work together and make Clark County a leader in protecting water and the salmon,” Hasselman said.
He said the county could face significant fines for being in violation of the Clean Water Act.
Wednesday’s decision by Pollution Control Hearings Board was signed by board members Kathleen D. Mix and William H. Lynch.
Member Andrea McNamara Doyle issued a separate opinion in which she wrote that she agreed with her fellow board members on some criticisms of Clark County’s plan but wouldn’t go as far as concluding it was unworkable.
The plan was approved last year, settling a long-running feud with the state over how far it must go to reduce polluted runoff. The state agreed that the county did not have to meet the state’s “presettlement runoff standard,” which requires that newly developed sites drain as slowly as they did prior to Euro-American settlement.
Under the county’s plan, the developer has to ensure that flow conditions do not change, and the county will make up the difference by restoring flow conditions elsewhere in the same watershed.
Gray said that this winter alone the county will be planting more than 60 acres of native vegetation, which would be more than the state would require if the county used the Department of Ecology’s default standard.
Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.
