On March 2, the Vancouver City Council postponed adoption of tougher stormwater regulations to allow time for more public input.
The proposed regulations would require new development to pay for impacts of prior development by detaining stormwater at the same rate that occurred prior to European settlement. On sites with poorly draining soils that do not discharge directly into a large water body, this could require enormous stormwater ponds taking up more than a third of the property.
On March 3, the Washington Supreme Court issued a decision denying review in a case (Citizens Alliance for Property Rights vs. Sims) that could provide another basis for landowners to sue local governments that overreach with their stormwater regulations.
Under Sims, city requirements to set aside land for nondevelopment purposes must be reasonably necessary to mitigate an impact that is the direct result of the development.
The local government can require mitigating the effects of increased runoff by detaining and releasing it at the pre-development rate.
Current stormwater ordinances meet the Sims “direct result” standard because they require stormwater to be detained at the same rate as prior to the development.
But requiring new development to release at a much lower pre-European settlement rate goes beyond the “direct result” standard imposed in Sims by requiring the new development to mitigate impacts resulting from previous development.
If adopted, the proposed Vancouver regulations could lead to landowner lawsuits under Sims and other cases. But if the new regulations are not adopted, Vancouver could end up in hot water with the Washington State Department of Ecology.
Under its Clean Water Act permitting authority, DOE is requiring local governments across the state to incorporate the pre-European settlement standard into their stormwater regulations.
But DOE’s unfunded mandate may not insulate local governments from lawsuits by landowners. According to the Sims decision, regulations adopted in response to a statutory requirement are not immune from landowner lawsuits.
Clark County recently amended its stormwater ordinance, but the county refused to adopt the pre-European settlement standard. There was concern that DOE may take enforcement action, but it has indicated it will consider the County’s stormwater ordinance as a work in progress.
Steve Morasch is an attorney in the Vancouver office of Schwabe, Williamson & Wyatt. He can be reached at 360-905-1433 or smorasch@schwabe.com.
