• Arne Mortensen

Stormwater Regulation Hearing - setting the record straight

The 12 July edition of TDN article titled “Commissioners stand ground on stormwater,” does not give an accurate picture of what happened at the Tuesday morning commissioners hearing. I’ll try to set that record straight and then explain more on this issue.

The correct picture would show the following:

  • The principal issue is a Washington State Department of Ecology ruling that requires the County to amend their current stormwater ordinance. The metric is the footprint of soil covered by building structures as well as driveways, patios, and the like --- essentially any area where development prevents the water from getting to the ground as it did before development. Two key changes to the county regulations are mandated; these apply [today] specifically to urbanized unincorporated areas:

  • Current metric is one acre (44,000 square feet); as of 1 July 2017, that number is 2,000 square feet. This means that all but the smallest of developments (are there any that small?) are impacted.

  • Once a development exceeds that 2,000 square feet, then mitigation steps will have to be taken; that is known a Low Impact Development (LID). Such steps might include creating a holding pond or, say, using permeable surfaces for driveways. These have upfront costs and consequent maintenance costs. (Permeable [surfaces] means water gets in, which is a problem with freezing weather.)

  • Using the fact that the new regulations add yet more significant costs to an already large regulatory burden on new construction, Commissioner Weber drew up a Declaration of Emergency for the county referencing affordable housing as a significant problem, which would be made worse by the adoption of the new regulations.

  • While the reasoning may vary between them, ALL three commissioners are opposed to the DoE mandate.

  • Council and staff had advised that the above declaration had no sway with the Department of Ecology. Nevertheless, Commissioner Weber made the motion to adopt the Declaration.

  • Commissioner Gardner, with reason, felt this was a gesture that accomplished nothing and was not directly tackling the issue.

  • After some explanation of strong ambivalence, I voted for Commissioner Weber's Declaration.

  • The specific issue of amending the ordinance, required by the DoE, was NOT the subject of a vote, but it was the subject of a serious discussion. Some topics discussed are:

  • What are the consequences of not adopting the amendment?

  • What are avenues to fight the amendment?

  • What does it mean to FORCE a commissioner to sign a document that he feels is ill advised and just plain wrong?

  • The vote on the amendment was postponed until the hearing this coming Tuesday. The County faces a DoE imposed deadline at the end of the month.

Hopefully you are still with me, and will stay with me for a little bit more about this issue:

Some facts to note:

  • The physical area affected by this regulatory change appears to be small, certainly a fraction of the area of the municipalities of Kelso and Longview, who already have adopted the amendment.

  • The several court challenges to this regulation, to date, have lost before the Washington State Courts.

  • Clark County, as an example, has been paying fines to the tune of several million dollars and still has some unsettled issues … and in the end were forced to adopt the amended regulations.

  • The reported penalty amounts are $54,000 per day per violation. Even one violation is more than the county can handle.

  • The federal Clean Water act currently is under review; some of these regulations in this issue stem from “interpretations” of the federal ruling, so there may be some relief arising from these changes. See this article. SOAP BOX ON: in 1919, Prohibition was passed as a Constitutional amendment. Why did it require an amendment? Because the people understood that the Federal Government has no right to pass such a regulation (see the 9th and 10th amendments), the last two items in the Bill of Rights). Yet, today the people “accept” that the Federal Government can do anything it wants, while the government pretends to be faithful to the US Constitution. And so it is with all of these federal EPA mandates. SOAP BOX OFF.

  • This issue has a chance of being “fixed” in the legislature; even though the other counties have signed off on this regulatory amendment, it likely was because of the big hammer being applied to them, the same hammer being applied to us. We (commissioners) will work on a fix by the legislature.

Between now and Tuesday we (commissioners) will work this issue more. My vote (and I am sure that is the case for the other commissioners) will be based upon our individual final assessment of what is best for the county, balancing the short run and the long run, balancing risks and stakes. In the long run and in general, commissioners must be more aggressive and vigilant to avoid being caught in administrative bureaucratic cross hairs that violate property rights, which consequently weakens us all.

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