In 2009, Clark County adopted a new stormwater ordinance that contains alternative standards to those contained in the Department of Ecology’s Phase I Stormwater General Permit. These alternative standards are viewed as less onerous on owners and developers than the Ecology standards. Environmental groups sued the County, arguing that the alternative program is unauthorized, and this case is pending at the Washington Court of Appeals.
While the case is pending, the environmental groups sought an injunction in federal court that would prevent the County from approving any development permit unless the County could ensure that the development complied with Ecology’s more stringent standards. On December 28, 2011, the federal court issued the injunction. This decision affects many approved vested projects with final land use decisions. Before issuing building permits for a house within an approved subdivision, for instance, the County will take time to determine whether the Ecology standards will be met. This will result in delays. Less clear is what happens if the County requires a developer to install larger or additional stormwater facilities to meet the standards. Will this obligation be passed on to the owner of a vested project, or will the County assume the cost? If this situation arises, owners and developers should consult with legal counsel to determine whether the County has the authority to impose the obligation to meet the new standards on a property owner with a final land use decision and a vested project.