A state appeals court’s ruling on Tuesday in favor of the Building Industry Association of Clark County regarding stormwater regulations is a major victory for developers and local governments, representatives from the association said.
In a lawsuit by Snohomish and King Counties and the BIA against the Pollution Control Hearings Board, state Ecology Department and several environmental groups, the Washington State Court of Appeals Division II found that developers’ stormwater permits are a vested right, meaning a developer can proceed with construction on a project based on regulations in place when they received a permit rather than the most recent laws.
“This decision recognizes that stormwater regulations are land-use control ordinances,” said Jamie Howsley, a local land-use attorney and government affairs director for the BIA.
The decision overturns a ruling by the Pollution Control Hearings Board that stormwater requirements are environmental regulations under the federal Clean Water Act, not land-use control ordinances. That ruling had said that requiring developers to change their plans to meet more recent stormwater policies would not violate the vested rights doctrine, according to court documents.
The lawsuit specifically centered on a section of the 2013-2018 Phase I Municipal Stormwater Permit issued by the Ecology Department that required counties to adopt new stormwater manuals by June 30, 2015. If developers who received stormwater permits did not start construction by June 30, 2020, they would have had to comply with those new stormwater rules regardless of when they received permits.
In addition to helping developers, the ruling protects local governments from having to revisit and reapprove old applications, Howsley said.
“Both the private and public sector benefit because local government doesn’t have to re-review approved plans when they update their stormwater ordinances,” Howsley said. “And private landowners can assure themselves that they can move forward with their project as planned rather than having to go through an expensive redesign and approval process.”
Eric Golemo, an engineer and board member with the BIA, said stormwater is often one of the most significant items driving site design. If rules change, the entire site layout may need to be redrawn.
“When a developer or a business submits a proposal to build a new project, they need certainty,” he said.
Golemo estimates the decision could help about 30 local developers whose projects have been approved but haven’t started construction. he added that it will set precedent for future developments.
“This decision basically confirms that stormwater regulations have the same vesting protection as other land use-regulations,” he added.
Sandy Howard, a spokeswoman with the Department of Ecology, said the department is still reviewing the ruling to fully determine its impact.
“On the face of it, the decision appears to allow some developers to construct some projects without using stormwater-control techniques that are necessary to reduce stormwater pollutants to the maximum extent practicable, as required by the federal Clean Water Act.”
