Snohomish Cnty. v. Pollution Control Hearings Bd.

• Decision Date: 19 January 2016
• Docket Number: No. 46378–4–II.,46378–4–II.
• Citation: 192 Wash.App. 316,368 P.3d 194
• Parties: SNOHOMISH COUNTY, King County, and Building Industry Association of Clark County, Appellants, v. POLLUTION CONTROL HEARINGS BOARD, and Washington State Department of Ecology, and Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association, Respondents.
• Court: Washington Court of Appeals

192 Wash.App. 316

368 P.3d 194

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

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

No. 46378–4–II.

Court of Appeals of Washington, Division 2.

Jan. 19, 2016.

Alethea Hart, Laura Colthurst Kisielius, Snohomish County Prosecutor's Office, Everett, WA, Devon N. Shannon, King County Prosecuting Attorney's Office, Joseph B. Rochelle III, Attorney at Law, Darren E. Carnell, Office of the Prosecuting Attorney, Seattle, WA, James Denver Howsley, Jordan Ramis, PC, Vancouver, WA, for Appellants.

Ronald L. Lavigne Jr., Atty. Gen. Ofc./Ecology Division, Phyllis Jean Barney, Office of the Attorney General, Olympia, WA, Jan Erik Hasselman, Janette K. Brimmer, Earthjustice, Seattle, WA, for Respondents.

Nancy Bainbridge Rogers, Randall P. Olsen, Cairncross & Hempelmann PS, Seattle, WA, for Amicus Curiae on behalf of Master Builders Association of King and Snohomish Counties.

Diane L. McDaniel, Attorney at Law, Olympia, WA, for Other Parties.

MAXA, J.

¶ 1 Snohomish County, King County, and the Building Industry Association of Clark County (collectively, appellants) appeal the Pollution Control Hearings Board's (Board) order holding that condition S5.C.5.a.iii in the 2013–2018 Phase I Municipal Stormwater Permit (the 2013–2018 Permit) issued by the Washington Department of Ecology (Ecology) does not violate the vested rights of property developers. The 2013–2018 Permit requires Phase I permittees, which include certain counties and cities, to adopt by June 30, 2015 regulations for controlling stormwater drainage and runoff to municipal stormwater sewer systems for new development, redevelopment, and construction activities. Condition S5.C.5.a.iii provides that the new regulations will apply to all development applications submitted after July 1, 2015 and submitted before July 1, 2015 if construction is not started by June 30, 2020.

¶ 2 The statutory vested rights doctrine provides that a land use application generally must be considered under the zoning or other land use control ordinances in effect at the time the application was submitted. The appellants argue that enforcement of condition S5.C.5.a.iii would require permittees to violate the vested rights of developers because (1) the required stormwater regulations are land use control ordinances, (2) an application submitted before July 1, 2015 might not result in the start of construction by June 2020, and (3) condition S5.C.5.a.iii therefore might require counties to enforce stormwater regulations adopted after an application is submitted.

¶ 3 Ecology and Puget Soundkeeper Alliance (PSA) (collectively, Ecology) argue, and the Board ruled, that the 2013–2018 Permit would not require permittees to violate the vested rights doctrine because the required regulations are environmental regulations, not land use control ordinances. They also argue that even if the regulations are land use control ordinances, federal law preempts Washington's vested rights statutes.

¶ 4 We hold that (1) the 2013–2018 Permit's required stormwater regulations are "land use control ordinances" under the vested rights statutes, (2) enforcement of condition S5.C.5.a.iii would violate the statutory vested rights of developers who submit applications before July 1, 2015 but do not begin construction until after June 30, 2020, and (3) federal law does not preempt Washington's vested rights statutes. Accordingly, we reverse the Board's order and remand to the Board to direct Ecology to revise condition S5.C.5.a.iii to specify that the 2013–2018 Permit applies only to those completed applications submitted after July 1, 2015.

FACTS

¶ 5 The federal Clean Water Act (CWA)¹ prohibits any discharge of pollutants into the nation's waters, unless the discharge is made according to the terms of a permit issued under the National Pollution Discharge Elimination System (NPDES). 33 U.S.C. §§ 1311(a), 1342. The federal Environmental Protection Agency (EPA) may issue NPDES permits, but it may also delegate the authority to issue permits to a state agency. 33 U.S.C. § 1342(a)(1), (b). In Washington, EPA has delegated the authority to issue NPDES permits to Ecology. See RCW 90.48.260.

2013 Municipal Stormwater Permit

¶ 6 In August 2012, Ecology issued the 2013–2018 Phase I Municipal Stormwater Permit.² The 2013–2018 Permit authorizes and regulates the discharge of stormwater to surface waters and to ground waters from large and medium municipal separate storm sewer systems, referred to as MS4s.³ Snohomish County, King County, Pierce County, Clark County, and the cities of Seattle and Tacoma are among the entities that are permittees under the 2013–2018 Permit.⁴ The 2013–2018 Permit is effective from August 1, 2013 through July 31, 2018.

¶ 7 Ecology implements the 2013–2018 Permit at the local level by mandating that each local permittee be responsible for compliance with the 2013–2018 Permit's terms. The 2013–2018 Permit requires all permittees to create a stormwater management program. That program must include the enactment of local ordinances or other governing documents regulating development within each permittee's jurisdiction. The 2013–2018 Permit requires several conditions that permittees must implement through their ordinances. Condition S5.C.5 is one such condition.

¶ 8 Condition S5.C.5 focuses on preventing and controlling stormwater runoff from new development, redevelopment, and construction activities. This condition applies to those projects that meet certain thresholds specified in Appendix 1 of the 2013–2018 Permit⁵ and that will discharge stormwater into an applicable sewer system.

¶ 9 Condition S5.C.5 includes a lengthy set of minimum performance measures, one of which includes site and subdivision scale requirements implementing the "[m]inimum [r]equirements, thresholds, and definitions" in Appendix 1 of the 2013–2018 Permit for new development, redevelopment, and construction sites. Site and subdivision scale requirements that developers must implement include preparing stormwater site plans; drafting stormwater pollution prevention plans; utilizing all known, available, and reasonable source control best management practices; maintaining natural drainage patterns to the maximum extent practicable; and implementing on-site stormwater management best management practices to the extent feasible in various contexts. In addition, certain projects trigger additional minimum requirements that developers must comply with. These include constructing stormwater treatment facilities to treat stormwater runoff, implementing flow control standards to reduce the impacts of stormwater runoff, ensuring that projects draining into wetlands comply with various guide sheets and construction restrictions, and maintaining an operation and maintenance manual.

¶ 10 Condition S5.C.5.a.iii provides that permittees must adopt and make effective a stormwater management program that meets the 2013–2018 Permit requirements no later than June 30, 2015. The second sentence of the condition addresses the applicability of the new program to development projects:

The local program adopted to meet the requirements of S5.C.5.a.i through ii 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.

Certified Appeal Board Record (CABR) at 27 (emphasis added) (footnotes omitted).

Procedural History

¶ 11 Snohomish County, King County, Pierce County, Clark County, and the Building Industry Association of Clark County appealed the 2013–2018 Permit to the Board.⁶ They argued in part that the 2013–2018 Permit's requirements were land use control ordinances and that condition S5.C.5.a.iii conflicted with Washington's vested rights and finality laws. Ecology argued that the requirements under the 2013–2018 Permit were environmental regulations that were necessary to comply with the federal CWA and state Water Pollution Control Act, and therefore did not implicate the vested rights doctrine.

¶ 12 In October 2013, the Board issued a summary judgment order ruling that the 2013–2018 Permit's requirements were environmental regulations and therefore that condition S5.C.5.a.iii did not violate Washington's vested rights doctrine or finality doctrine. The Board stated that it "has consistently ruled that the requirements imposed by NPDES stormwater permits are not land use control ordinances that are subject to state vesting laws." Clerk's Papers (CP) at 56. Moreover, the Board rejected the notion that the doctrines of vested rights and finality of land use decisions could control and limit the application of state and federal water quality requirements.

¶ 13 However, the Board's summary judgment order did require Ecology to modify the second sentence of condition S5.C.5.a.iii. The Board directed Ecology to replace the phrase "projects approved" with "application submitted."

¶ 14 Following a trial on the remaining issues in the case, the Board issued its final decision and order. The appellants separately appealed the Board's October 2013 decision to the Thurston County Superior Court.

Thurston County consolidated the appeals. The appellants sought direct review, which this court granted.

ANALYSIS

A. STANDARD OF REVIEW

¶ 15 The Administrative Procedures Act (APA) governs our review of Board decisions. See RCW 34.05.570(1)(b) ; Cornelius v. Dep't of Ecology, 182 Wash.2d 574, 584–85, 344 P.3d 199 (2015). We apply the APA to the administrative record. Cornelius, 182 Wash.2d at 585, 344 P.3d 199. We may grant relief from an order based on several reasons listed in RCW 34.05.570(3), including that the order is (1) outside the statutory authority of the agency, and (2) based on an erroneous interpretation or application of the...