Editorial: Court decision on stormwater rules protects state waters

By The Herald Editorial Board

Sometimes, relying on a grandfather isn’t a good idea.

No offense meant to any actual granddads; generally they’re pretty reliable and knowledgeable sorts.

Grandfather clauses, however, can be another matter.

Last month, the state Supreme Court unanimously reversed an appeals court decision that held that certain construction and development projects that hadn’t broken ground didn’t have to comply with state rules on treating stormwater runoff if they had applied for permits before July 2015 when new clean water permit rules took effect.

Developers, specifically the Building Industry Association of Clark County, which was joined in the suit by Snohomish and King counties, challenged a decision by the state Pollution Control Hearings Board and the state Department of Ecology that the stormwater standards applied to those projects. They’ve objected to the increased cost and delay involved in meeting those requirements.

Supported by other building and real estate groups, the plaintiffs claimed that the state’s vested rights doctrine regarding land use control ordinances applied and effectively grandfathered those projects that had applied for permits before the stormwater rules took effect even if they hadn’t broken ground before the deadline.

Treating stormwater is of increasing concern because of the impacts stormwater has on water quality in local waterways, particularly for Puget Sound and the larger Salish Sea. Stormwater is a leading cause of water pollution; the rainwater that runs off hard surfaces collects pollutants, such as oils, sediments, bacteria, pesticides, fertilizers and other chemicals, carries them into waterways and harms aquatic life. We have seen those health impacts increase for a range of species, such as shellfish, herring, salmon and orca whales.

The decision is not likely to affect many projects, some in the building industry admitted, but that didn’t stop criticism of the court decision, as The Herald’s Noah Haglund reported in late December.

“The ruling asserts that these stormwater regulations are not land-use controls, which in our opinion, is absurd,” Mike Pattison, a lobbyist for the Master Builders Association of King and Snohomish Counties, told The Herald. “The new stormwater regulations dictate everything on new development from the size of new detention facilities, the makeup of your drainage systems and even the kind of pavement you use. The court really missed the point on that issue and demonstrated a lack of understanding of the land-use process.”

On the contrary, the court’s opinion goes to great lengths to show how court precedent and legislative history don’t support applying the vested rights doctrine to stormwater rules.

“Developers don’t have a vested right to discharge polluted stormwater in violation of state and federal water pollution laws,” Justice Debra Stephens wrote for the court, agreeing with the Department of Ecology in its argument before the justices.

The vested rights doctrine, the court determined, was meant to prevent municipalities from abusing their discretion in applying land use and zoning ordinances, not limit state and federal governments from exercising their regulatory power, in this case in the interest of protecting clean water and the health of the state’s fresh and marine waters.

In the interests of fairness, it’s also best if all developers are required to build to the same standards of environmental protection, rather than grant a grandfather clause to a few developers who applied for permits before a deadline but who have yet to start work on their projects.