In a decision issued on September 25, 2012, Division II of the Washington State Court of Appeals upheld a decision by the Pollution Control Hearings Board invalidating Clark County’s storm water ordinance. The court found that the agreed order between Clark County and the Department of Ecology did not comply with state law because it allowed Clark County to adopt a modified storm water program that did not comply with Ecology’s standards. The key issue in this case was that Ecology’s standards require developers to reduce storm water runoff from new development to the “historical” level at the site. Clark County’s program, on the other hand, required a developer to mitigate only for the increased flow caused by its development; the County would further mitigate flow back to its historic level. The court ruled that the PCHB’s decision rejecting the County’s program was within its authority to make and was supported by substantial evidence.
Also of note in the case is that the court refused to find that Ecology’s standards violated the vested rights of developers. Developers obtain vested rights to have their projects considered under the land use control ordinances in effect at the time they file their applications If there is a change in law, the new law typically does not apply to a vested application. In this case, the court found that because nothing in Ecology’s standards or the PCHB’s order requires Clark County to pass ordinances obligating the developers to incur the more onerous burden of mitigating to the historic levels, there is no violation of vested rights and the court declined to address the legal vesting issue further. Once Clark County adopts new ordinances, the vested rights argument will arise then. Read the decision from the Washington State Court of Appeals.