Those following Clark County’s stormwater case in federal court, as reported in this blog below, will not be surprised to learn the latest news: the environmental groups challenging the County’s alternative program are objecting to putting up a bond while the case continues. To recap, on December 28, 2011, the federal court for the Western District enjoined the County from issuing any permits or “authorizations” for development unless the County confirms that the projects meet Ecology’s more stringent stormwater standards. The effect of this order results in the County re-reviewing hundreds of projects, and perhaps requiring additional or larger stormwater facilities for even approved projects. The injunction is temporary until there is a final ruling on whether the County’s program is lawful.
Clark County recently filed papers with the federal court, requesting that the environmental groups post a $2.8 million bond during the pendency of the case to cover the costs of re-reviewing hundreds of development proposals. Last week, the environmental groups responded by asking the court to waive the bond requirement, arguing that it is not merited because of the important public interest at stake in enforcing the requirements of the Clean Water Act, the likelihood of their success on the merits, and their inability to fund a more-than-nominal bond. Moreover, the environmental groups are arguing that the County failed to demonstrate that it is likely to suffer any damages, much less $2.8 million, as a direct result of the court’s injunction. Finally, they are arguing that if the court was inclined to impose a more-than-nominal bond, the court should lift the injunction instead because they could not afford it. A lift of the injunction would allow projects to proceed under less stringent stormwater standards, but the environmental groups warned that the County would then be proceeding at its own risk, potentially exposing itself to greater liability. The court is expected to rule on the bond amount in the next several weeks.