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.

Talk to us

More in Opinion

Editorial cartoons for Saturday, Dec. 2

A sketchy look at the news of the day.… Continue reading

civic health white board
Editorial: Improving civic health starts by coming to table

Efforts locally and at the state level seek to counter the incivility that has mired public discourse.

Comment: Officials, citizens can make pledge to build bridges

Two Snohomish County Council members are calling on all to work past incivility in our public lives.

Comment: Mukilteo needs traffic cameras for safety, less noise

Drivers are routinely exceeding speed limits as they pass a school and parks on Mukilteo Speedway.

Kathy Solberg
Forum: Weaving our community efforts creates our social fabric

We have many opportunities to contribute to our community, efforts we can see and take pride in.

Dan Hazen
Forum: Nuanced thinking is helpful, when applied to all issues

Our problem isn’t in recognizing an issue’s complexity but in seeing the bias in our own ‘movie’s script.’

Comment: Amid AI and ‘deepfakes,’ a thirst for the ‘authentic’

Our anxieties about AI led Merriam-Webster to choose ‘authentic’ as its word of the year.

Editorial cartoons for Friday, Dec. 1

A sketchy look at the news of the day.… Continue reading

From the bodycam footage of Everett police officer Ryan Greely and footage from Molly Wright, Wright films officer Greely before he arrests her for obstructing a law enforcement officer on Aug. 10, 2023 in Everett, Washington. (Screenshot from a video provided by Molly Wright)
Editorial: Duties on both sides of camera during arrests

The right to record police activity is clear, but so is the need to respect the safety of officers and others.

Macro photo of tooth wheel mechanism with imprinted RECEIVE, GIVE concept words
Editorial: Get back into charitable habit for Giving Tuesday

Inflation sapped donations for charities last year; things may be looking up this year for more.

Owners of Country Rose/The Paint Bungalow, Donna Mains (left) and Kathleen Shalan in their shop in October, 2021 in Arlington. The gift store also stocks Annie Sloan paint as well as being a women's apparel boutique. (Andy Bronson / The Herald file photo)
Editorial: Stroll, don’t scroll on Small Business Saturday

Shopping local stores is a great way to find gifts and supports local economies and your neighbors.

Schwab: Rudolph knows rain, dear, but the fog story’s a hoax

Coming down from a Italian gelato high, Sid muses on calculus, puns and a certain reindeer myth.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.