Rosemere Neighborhood Ass'n v. Clark Cnty., 41833–9–II.

• Court: Court of Appeals of Washington
• Writing for the Court: ARMSTRONG
• Citation: 290 P.3d 142,170 Wash.App. 859
• Parties: ROSEMERE NEIGHBORHOOD ASS'N; Columbia Riverkeeper; and Northwest Environmental Defense Center, Respondents, v. CLARK COUNTY, Appellant, and Building Industry Ass'n of Clark County, Appellant/Intervenors, and State of Washington, Department of Ecology, Respondent.
• Docket Number: No. 41833–9–II.,41833–9–II.
• Decision Date: 25 September 2012

170 Wash.App. 859
290 P.3d 142

ROSEMERE NEIGHBORHOOD ASS'N; Columbia Riverkeeper; and Northwest Environmental Defense Center, Respondents,
v.
CLARK COUNTY, Appellant,
and
Building Industry Ass'n of Clark County, Appellant/Intervenors,
and
State of Washington, Department of Ecology, Respondent.

No. 41833–9–II.

Court of Appeals of Washington,
Division 2.

Sept. 25, 2012.

[290 P.3d 146]

E. Bronson Potter, Christine M. Cook, Clark Co. Prosc. Atty. Ofc., Vancouver, WA, for Appellant.

Jan Erik Hasselman, Janette K. Brimmer, Earthjustice, Seattle, WA, Ronald L. Lavigne Jr., Aty. Gen. Ofc./Ecology Division, Olympia, WA, for Respondents.

James Denver Howsley, Jordan Ramis, PC, Vancouver, WA, for Appellant Intervenors.

Julie Sund Nichols Law Offices of Stephen Whitehouse, Shelton, WA, amicus counsel for

[290 P.3d 147]

Building Industry Association of Clark County.

Marc Worthy, Office of the Attorney General, Seattle, WA, for other interested parties.

ARMSTRONG, P.J.

[170 Wash.App. 863]¶ 1 The federal Clean Water Act ¹ and Washington statutes ² require municipalities to adopt ordinances that reduce storm water runoff that flows through their sewer systems to discharge in streams and rivers. The Washington State Department of Ecology (Ecology) administers the federal act and monitors compliance with it. Under this authority, Ecology issues permits that set the standards for complying with the Clean Water Act. In January 2007, Ecology issued a Permit ³ that applied to Clark County (County). A major component of the Permit is a storm water flow control condition, which requires permittees to reduce storm water runoff from new development to the “historical” level at the site. Under the current Permit, a permittee can adopt an alternative storm water flow control program if the alternative program provides “equal or similar” protection to that specified in the Permit.

¶ 2 The County adopted its ordinances; Ecology found the County's ordinances were insufficient, and the two then [170 Wash.App. 864]negotiated an Agreed Order ⁴ to bring the County into compliance with the Permit. The County entered the Agreed Order in January 2010. As modified by the Agreed Order, the alternative program required a developer to mitigate only for the increased flow caused by its development; the County would further mitigate flow back to its historic level. The County could fulfill its mitigation obligation by reducing flow on locations other than the property being developed, so long as those other locations met comparable acreage and land cover requirements.

¶ 3 Rosemere Neighborhood Association, Columbia Riverkeeper, and Northwest Environmental Defense Center (collectively Rosemere) challenged the Agreed Order before the Pollution Control Hearings Board (Board). The Board found the alternative program in the Agreed Order was not as protective as the Permit standards, principally because it (1) allowed developments applied for between the Permit's expected effective date and the Agreed Order's actual effective date to escape the flow control requirements and (2) did not meet the “equal or similar” standard required for alternative programs. The. County and the Building Industry Association of Clark County (Building Association) appeal the Board's decision, arguing that (1) the Board overstepped its authority; (2) the Board's decision will require the County to violate Washington's vesting law; (3) the Board failed to defer to Ecology's expertise on the “equal or similar” issue; and (4) lack of deference led to improper findings of fact. Because the Board acted within its authority, the Board's decision does not violate Washington's vesting doctrine, and evidence supports the Board's decision that the County's alternative program does not afford the protection the Permit requires, we affirm.

[170 Wash.App. 865]FACTS

¶ 4 The Clean Water Act prohibits pollution of the nation's surface waters, ⁵ except where the discharge of pollutants complies with the act. 33 U.S.C. §§ 1311(a), 1342(b). The environmental Protection Agency (EPA) regulates water quality by issuing permits to allow the discharge of pollutants into surface waters and can delegate this authority to a state agency. 33 U.S.C. §§ 1342, 1251(d). If the EPA delegates its authority, the state

[290 P.3d 148]

agency must enforce water quality standards that are equal to or better than the federal standards. 33 U.S.C. § 1342(b).

¶ 5 In Washington, the EPA has delegated its permitting power to Ecology. RCW 90.48.260(1)(a).⁶ The permit at issue regulates water pollution discharges into municipal storm sewer systems. Storm water runoff through sewer systems is a significant contributor to the degradation of surface waters, and thus is the focus of the permit regulations. Storm water runoff (1) carries chemicals from the ground into surface waters, (2) increases the volume of the surface water, which in turn increases stream channel erosion, and (3) adversely affects stream wildlife (i.e., salmon and its eggs). New construction and development increase storm water runoff by adding impervious surfaces to land that would otherwise allow water to naturally seep into the ground.

¶ 6 In January 2007, Ecology issued the Permit, which governs large western Washington municipalities that discharge storm Water runoff into a sewer system. Because the County discharges storm water into a qualifying sewer system, it is a permittee and must comply with the Permit.

[170 Wash.App. 866]¶ 7 The Permit requires all permittees to create a storm water management program and sets out several conditions that a permittee must incorporate into its programs. At issue here are condition S5.C.5, controlling storm water runoff from new development and redevelopment (flow control), and condition S5.C.6, structural storm water controls (structural retrofit). The structural retrofit condition existed in previous versions of this Permit, but the flow control condition is new.

¶ 8 Under the flow control condition, a permittee must create a program that prevents and controls the impact of storm water runoff from new development, redevelopment, and construction site activity (development). Flow control projects may include: (1) detention and retention ponds, which hold storm water runoff and release it at a slower rate, or (2) low impact development methods, such as rain gardens and pervious cement. The flow control condition requires permittees to control the high flow storm water runoff such that it matches the pre-developed (historical) discharge durations of the land. ⁷ For example, if the land being developed was historically forested land, the flow controls must reduce storm water runoff to the same level as when the property was forested. The Permit sets August 16, 2008 as the date permittees must pass ordinances creating a flow control program, which is 18 months after Ecology issued the Permit.

¶ 9 The structural retrofit condition requires permittees to construct storm water controls that prevent or reduce impacts from runoff that are not otherwise covered by specific conditions in the Permit. For example, many areas of developed land discharge into the sewer system but are not covered by the new flow control condition; thus, the permittee must construct projects to make up for that lack of control. Structural retrofit projects include anything [170 Wash.App. 867]from constructing a regional flow control facility to acquiring land to re-forest.

¶ 10 A permittee may implement a different or more stringent program than the specific Permit standards. To do so, the permittee must prepare a basin program or other similar scientific analysis to show that its alternative program will be “equal or similar” to the Permit's standards. Ex. J–17 at 25, 28–29. A basin program generally determines the existing land cover and imperviousness, evaluates every stream channel in a basin, evaluates all drainage facilities in the basin, and analyzes the existing water quality in the basin.

¶ 11 In January 2009, the County adopted ordinances implementing its storm water management program; the ordinances became effective April 13, 2009. Ecology found that the County had not complied with the Permit standards and issued a notice of violation

[290 P.3d 149]

in March 2009. In addition to the County's tardiness in passing its ordinances, Ecology stated that the County's flow control program was not “equal or similar” to the Permit conditions. Ex. J–2 at 2. Based on the notice of violation, the County and Ecology negotiated a compliance agreement. On January 6, 2010, Ecology and the County entered into the Agreed Order, which Ecology believed brought the County into compliance with the Permit terms because it was “equal or similar” to the Permit. Ex. J–1.

¶ 12 The Agreed Order is an alternative storm water control program. Under this alternative, the developer must control flow only to the “existing” condition at the site when it begins construction, rather than to the “historic [al]” level. See Ex. J–1 at 3–4. Then, the County is obligated to mitigate to the “historical” level of flow control. Ex. J-l at 3–4. For example, if a developer builds on land that is currently prairie land, but historically was forested land, the developer need only offset impacts of storm water runoff from its development project to prairie condition. The County must then mitigate the remaining storm water runoff impact to [170 Wash.App. 868]the same level as when the land was forested. The County may construct its mitigation project at the development site itself or at another location within the same “[w]ater [r]esource [i]nventory [a]rea.” ⁸ Ex. J–1, Attach. A at 8. The County must mitigate the same number of acres as are being developed by the private developer. The acreage is broken into three categories-effective impervious area, pasture land, and lawn/landscape. The County must track these three land cover categories at the development site and then “construct flow...