Snohomish Cnty. v. Pollution Control Hearings Bd.

• Decision Date: 29 December 2016
• Docket Number: NO. 92805-3,92805-3
• Citation: 386 P.3d 1064,187 Wash.2d 346
• Parties: SNOHOMISH COUNTY, King County, and Building Industry Association of Clark County, Respondents, v. POLLUTION CONTROL HEARINGS BOARD, and Washington State Department of Ecology, and Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association, Petitioners.
• Court: Washington Supreme Court

187 Wash.2d 346

386 P.3d 1064

SNOHOMISH COUNTY, King County, and Building Industry Association of Clark County, Respondents,

v.POLLUTION CONTROL HEARINGS BOARD, and Washington State Department of Ecology, and Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association, Petitioners.

NO. 92805-3

Supreme Court of Washington, EN BANC.

Argued Oct. 13, 2016

Filed Dec. 29, 2016

Janette K. Brimmer, Jan Erik Hasselman, Earthjustice, 705 2nd Ave., Ste. 203, Seattle, WA, 98104-1711, Ronald L. Lavigne Jr., Phyllis Jean Barney, Office of the Attorney General, P.O. Box 40117, Olympia, WA, 98504-0117, Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104-3188, for Petitioners.

James Denver Howsley, Jordan Ramis, PC, 1499 S.E. Tech Center Pl., Ste. 380, Vancouver, WA, 98683-9575, Joseph B. Rochelle, III, Attorney at Law, 500 4th Ave., Ste. 900, Seattle, WA, 98104-2316, Devon N. Shannon, Darren E. Carnell, Office of the Prosecuting Attorney, 516 3rd Ave., Rm. W400, Seattle, WA, 98104-2388, Alethea Hart, Laura Colthurst Kisielius, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Respondents.

Nancy Bainbridge Rogers, Randall P. Olsen, Cairncross & Hempelmann PS, 524 2nd Ave., Ste. 500, Seattle, WA, 98104-2323, as Amicus Curiae on behalf of Master Builders Association of King and Snohomish Counties.

Brian Trevor Hodges, Pacific Legal Foundation, 10940 N.E. 33rd Pl., Ste. 210, Bellevue, WA, 98004-1432, Ethan Blevins, Attorney at Law, 1016 165th Pl. N.E., Bellevue, WA, 98008-3735, as Amicus Curiae on behalf of Pacific Legal Foundation.

Nathan Graham Smith, Attorney at Law, 422 W. Riverside Ave., Ste. 1100, Spokane, WA, 99201-0302, George Richard Hill, McCullough Hill PS, 701 5th Ave., Ste. 6600, Seattle, WA, 98104-7006, Aaron Matthew Laing, Schwabe Williamson & Wyatt PC, 1420 5th Ave., Ste. 3400, Seattle, WA, 98101-4010, Adam R. Frank, BIAW, 111 21st Ave. S.W., Olympia, WA, 98501-2809, as Amicus Curiae on behalf of Building Industry Association of Washington.

Bill Clarke, Attorney at Law & Government Affairs, 1501 Capitol Way S., Ste. 203, Olympia, WA, 98501-2200, James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave., Ste. 1100, Seattle, WA, 98121-2100, as Amicus Curiae on behalf of Washington Realtors.

STEPHENS, J.

¶1 This case asks us to decide whether Washington's vested rights doctrine excuses compliance with the requirements of a municipal storm water permit.

The Washington State Department of Ecology issued the third iteration of a municipal storm water permit pursuant to the Federal Water Pollution Control Act (also known as the Clean Water Act), 25 U.S.C. §§ 1251 –1388, and the National Pollutant Discharge Elimination System permitting program established by the act. The permit requires the owners or operators of large and medium municipal separate storm sewer systems to adopt and make effective a local storm water management program by June 30, 2015. The program may include local ordinances and "shall apply to all [development] applications submitted after July 1, 2015 and shall apply to [development] projects approved prior [to] July 1, 2015, which have not started construction by June 30, 2020." Certified Record (CR) at 26 -27. Various permittees appealed this portion of the permit to the Pollution Control Hearings Board, claiming that it violated the vested rights doctrine because it compelled them to retroactively apply new storm water regulations to completed development applications.

¶2 The Pollution Control Hearings Board held that the vested rights doctrine does not apply to storm water regulations permittees must implement as part of the National Pollutant Discharge Elimination System permitting program. The Court of Appeals reversed, finding that the vested rights doctrine excuses compliance with the storm water regulations because they are "land use control ordinances." Snohomish County v. Pollution Control Hr'gs Bd. , 192 Wash.App. 316, 323, 368 P.3d 194 (2016). We reverse the Court of Appeals and reinstate the Pollution Control Hearings Board's order.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Federal Clean Water Act and State Water Pollution Control Act

¶3 The Clean Water Act's (CWA) purpose is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve that purpose, the CWA prohibits the discharge of pollutants from a point source absent a National Pollutant Discharge Elimination System (NPDES) permit. Id. §§ 1311(a), 1342(a). Large and medium municipal separate storm sewer systems (MS4s) are " ‘point source[s]’ " and therefore require an NPDES permit Id. § 1362(14).

¶4 Congress authorized the Environmental Protection Agency (EPA) to delegate the NPDES permitting program to the States. Id. § 1342(b). The EPA delegated authority to the Washington State Department of Ecology to implement the NPDES permitting program in Washington. RCW 90.48.260(1). The legislature has recognized that Ecology has "[c]omplete authority to establish and administer" the program. Id. at (1)(a).

¶5 The permits Ecology issues must comply with the federal CWA standard and the state water pollution control act (WPCA), chapter 90.48 RCW, standard. 33 U.S.C. § 1342(p)(3)(B)(iii) ; CR at 3996-97. The federal standard provides that "[p]ermits for discharges from municipal storm sewers ... shall require controls to reduce the discharge of pollutants to the maximum extent practicable [ (MEP) ]." 33 U.S.C. § 1342(p)(3)(B)(iii). The state standard provides that Ecology "shall ... incorporate permit conditions which require all known, available, and reasonable [treatment] methods to control toxicants [ (AKART) ]." RCW 90.48.520. Ecology issued the first iteration of the municipal storm water permits in 1995, and the second iteration in 2007. CR at 4057.

The 2013 Municipal Storm Water Permits

¶6 In order to give context to the primary issue in this case, it is helpful to briefly review the history of the third iteration of the permits (2013 Permits), which include two phases ("2013 Phase I Permit" and "2013 Phase II Permit"). Id. at 10. The development of those permits was partly in response to a Pollution Control Hearings Board (Board) decision regarding the second iteration of the permits (2007 Permits), Several permittees appealed the 2007 Permits to the Board. The Board found that the 2007 Permits "failed to reduce pollutants to the federal [MEP] standard, and without greater reliance on [low impact development (LID) ], did not represent [AKART]" under state law. Id. at 4058. The Board directed Ecology to modify the 2007 Permits accordingly. Ecology did not amend and reissue the 2007 Permits, but instead conducted studies to develop appropriate LID techniques for the next iteration of the permits, i.e., the 2013 Permits. The legislature subsequently amended RCW 90.48.260, acknowledging the requirements and timelines for Ecology's implementation of LID techniques in the next iteration of the permits.

¶7 Ecology issued the third iteration of the permits on August 1, 2012. The 2013 Phase I Permit became effective on August 1, 2013 and is set to expire July 31, 2018. Id. at 12. That permit covers discharges from MS4s, including the cities of Tacoma and Seattle, as well as Snohomish, Clark, King, and Pierce Counties (collectively permittees). "Special Condition S5" requires permittees to implement a storm water management program. Condition S5(C)(5) requires the storm water management program to include minimum performance measures to prevent and control storm water runoff from new development, redevelopment, and construction activities. The minimum performance measures include mandatory LID techniques for development projects that meet certain thresholds and "shall be included in ordinances or other enforceable documents adopted by the local government." Id. at 26.

¶8 Condition S5(C)(5)(a)(iii) (Condition) provides that permittees must adopt and make effective a storm water management program that meets the 2013 Phase I Permit's requirements by June 30, 2015. Id. at 27. The second sentence of that Condition is at issue in this case and provides: "The local program ... shall apply to all applications submitted after July 1, 2015 and shall apply to projects approved prior [to ] July 1, 2015, which have not started construction by June 30, 2020. " Id. (emphasis added).¹

Appeal of the 2013 Phase I Municipal Storm Water Permit

¶9 Pierce County, Snohomish County, King County, and the Building Industry Association (BIA) of Clark County separately appealed portions of the 2013 Phase I Permit to the Board (Phase I appeal). The cities of Seattle and Tacoma and the Washington State Department of Transportation (WSDOT) intervened as appellants. Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association (collectively Alliance) intervened as respondents. The WSDOT withdrew from the Phase I appeal, and other parties separately appealed the 2013 Phase II Permit (Phase II appeal), which is not at issue in this case. The Board consolidated the appeals in November 2012, and subsequently consolidated certain issues from the Phase I and Phase II appeals in January 2013. Various parties moved for summary judgment on the Phase I and Phase II appeals issues. The Board issued three orders on summary judgment, but only its October 2, 2013 order is at issue in this case. Clerk's Papers (CP) at 23, 258, 424.

¶10 In its order, the Board concluded that storm water regulations required under the 2013 Phase I Permit are not "land use control ordinances" governed by Washington's vesting statutes. CR at 3998. It offered four reasons for this conclusion. First, the 2013 Phase I Permit implements state and federal laws to address water quality, not to control land use. Id. at 3998-99. Second, it is the province of the legislature to...