Stormwater Vested Rights Dispute To Supreme Court

Published Mar 02, 2016
Water Quality, Land Use

In January 2016, Division II of the Court of Appeals held that development regulations required under Washington’s Phase I municipal stormwater permit are “land use control ordinances” subject to Washington vested rights statutes.

The Pollution Control Hearings Board had affirmed the Department of Ecology’s 2013-2018 Phase I Municipal Stormwater Permit, which requires that certain cities and counties adopt regulations for controlling stormwater runoff and discharges to municipal stormwater systems for new development, redevelopment, and construction activities. The Court of Appeals held that the federal Clean Water Act does not preempt Washington’s vested rights statutes, which apply to building permit applicants (RCW 19.27.095(1)), subdivision applicants (RCW 58.17.033(1)), and parties to development agreements (RCW 36.70B.180).

In its opinion, the Court invalidated Ecology’s stormwater permit condition requiring cities and counties to impose the new rules on projects with vested development rights. Ecology and Puget Soundkeeper Alliance and other environmental organizations have filed petitions for review with the Washington Supreme Court. For more information, contact James Tupper at