By Katie Jeremiah, Jordan Schrader Ramis
Is it possible to regulate urban development so that it imitates conditions that existed hundreds of years ago? Is it a reasonable goal?
The Clark County Board of Commissioners must decide these matters as they prepare draft standards to meet the new stormwater standards of the Department of Ecology.
Local developers criticize the new standards as impractical, potentially damaging to the economy and advantageous to nearby Oregon developers.
Environmental groups, however, contend that the standards – some of the toughest in the nation – are not tough enough. They assert that the impact of polluted stormwater runoff on water quality and fish and wildlife can be lessened only by tightening the regulations on development.
DOE was asked to prepare regulations to implement the state’s water pollution control law, which in turn administers the Clean Water Act’s national pollutant discharge elimination system (NPDES) requirements. NPDES permit regulations require the state to update its general discharge permit every five years.
The “Phase I General Permit” regulates discharges from municipal separate storm sewers operated by municipalities with populations of more than 100,000. DOE has the authority to issue permits to cities, towns and municipal corporations and can delegate that authority to allow local governments to issue permits.
The debate has focused on the “predeveloped condition” standard set by DOE, which requires developers to limit the volume of stormwater runoff to no more than what it was during pre-Euro-American settlement – more than 500 years ago.
This predeveloped condition standard requires that forested land cover be assumed as the predeveloped condition unless historic information is provided to indicate that the site was prairie.
This assumption makes it practically impossible to match the runoff volume of a highly urbanized setting.
In 2004, DOE recognized the impact of its assumption and issued a report to justify its flow-control goals and choice of forested land as the assumed predeveloped condition. DOE acknowledged that more often than not, basin-specific studies do not exist and without them, it is difficult to estimate an appropriate level of flow control.
The paper proposed a less ambitious flow-control goal in areas that have been highly urbanized for a long time. In those areas, it would use the existing land cover condition as the flow-control goal rather than the predeveloped condition.
This lesser goal would still meet the purpose of the standard – to protect stream channels from destabilizing erosive forces. DOE concluded it is inappropriate to a proposed development project to historic conditions when a basin-specific study has not been performed.
Despite DOE’s 2004 proposal, the draft permit was issued for public comment in 2005 with the predeveloped condition standard. Although exemptions were added, several comments submitted to DOE criticized the excessive cost and alleged conflicts with state vesting laws and protections against the unconstitutional taking of private property.
It is unclear why DOE’s proposal was never incorporated into the final permit, despite the report’s criticizing the use of a uniform standard throughout the state.
Clark County has considered forgoing adoption of the state’s standard in favor of a less stringent standard. The new standard would use 1955 levels of development as a benchmark with a forested land cover of less than 40 percent, the same cover that exists today.
It is unclear what actions Clark County will take in its opposition to DOE’s standards but DOE sent a clear message to the county that it will face penalties if a final ordinance was not adopted by Aug. 18.
Christopher L. Reive is a shareholder at Jordan Schrader Ramis PC, assisting businesses, individuals and local governments in recognizing and solving issues that arise from environmental concerns. Katie Jeremiah is a law clerk at the firm, and attends the Northwestern School of Law at Lewis and Clark College. Reive may be contacted at 360-567-3902 or chris.reive@jordanschrader.com.
