Sunday, March 29, 2009

Pollution from stormwater runoff is a Property-Rights issue

Whatcom County is blessed with abundant water resources but many of our beaches and tide lands have been closed to shellfish harvesting. What is the cause of these closures? Pollution.

In fact, Bellingham Bay was featured on the cover of "Time Magazine" as the most polluted bay in the nation in the late 60's. At one time, Bellingham Bay was filled with returning salmon, abundant shellfish and other marine life. Local tribes and early settlers depended on the bay as a source of food.

And in today's crass world of money, bays and estuaries are worth a king's ransom. Nevertheless, mankind is systematically killing them one by one by refusing to stop pollution or clean up chemical discharges.

Lake Whatcom has been listed on the 303 d list Water Quality Assessments (303[d]) and the Washington State Department of Ecology has recently published a TMDL report Lake Whatcom Watershed Total Phosphorus and Bacteria Total Maximum ... that requires Whatcom County and the City of Bellingham to reduce phosphorus loading by 70% in the lake.

Studies by Western Washington University and the Department of Ecology have documented that the primary source for pollution in Lake Whatcom is runoff from pavement, land clearing, development and inadequate stormwater management by local governments.

There are numerous other studies across the state and nation that document the effects of stormwater runoff, including articles about pathogens and chemical contaminants found in sediment and mud of bays, lakes, rivers and streams.

Flood warnings routinely advise downstream property owners not to come into contact with contaminated stormwater after a flood episode.

Who is responsible? We all are. But only government has the power and financial resources to stop or clean up contamination.

Locally, the City has imposed strict land use restrictions on downstream property owners while upstream property owners in the county (who contribute significantly to runoff and pollution in the lake) continue to pollute.

In fact, the public routinely provides a hidden subsidy to anyone who avoids the cost of treating or containing stormwater by dumping it on someone else's property, or into a publicly owned body of water.

The result? Other property owners and taxpayers are forced to bear the short and long term costs of pollution and poor land use decisions by local governments.

In some parts of the country, property owners are being forced to sue local governments to stop pollution. Citizen suit under Clean Water Act (CWA) for stormwater runoff ...

Some property-rights advocates claim that they have the right to do whatever they want on their own properties; then, they also claim the right to add their pollution to surrounding properties and public waters.

The Clean Water Act requires the states to establish water quality standards, which EPA must then approve, that designate the waters within each state for particular uses.

Waters that become degraded by point and non-point sources to the point that they do not support the designated use are listed as impaired.

The state and/or EPA then is required to establish total maximum daily loads (TMDLs) that limit the total quantity of pollutants that the water body can receive

The Clean Water Act declared that all sources of pollution to surface waters should be eliminated by 1985. (We missed that deadline by over twenty years).

Today, state and local government are attempting to learn as much as they can about effectively managing stormwater runoff, which is proving to be a challenge after they permitted urban development around bays, rivers and lakes.

The City of Bellingham is proposing a Lake Whatcom Infiltration Pilot Project for the city's portion of the watershed. I applaud the goals put forward by the city in the draft, but I have to ask, who is ultimately responsible for the contamination on private property from on-site infiltration programs?

Is contaminated stormwater a good source of water for gardens and wildlife enhancement pools? Or, will it transfer pathogens and chemicals to animals and humans?

Stormwater is the prime suspect in the declining health of Puget Sound. Consequently, stormwater regulation is about to enter a new era; and all signs point towards treatment and compliance with strict numeric standards.

Compliance will be difficult for many businesses and there will be particular challenges for local governments, who are now required to control the uncontrollable.

There is abundant case law that hold polluters responsible for trespass - even if stormwater runoff rules do not. It is an established fact that generator properties transfer chemicals, bio-waste and contaminated sediment to receptors downstream, such as private property owners and public waters.

Today, large law firms, like Perkins and Coie
Perkins Coie - News / Publications - Updates DetailIndustry Targeted ... provide legal services to companies that have been targeted by citizen action suits. (If I may be so bold as to point out to Perkins and Coie, its not just environmental groups that are filing citizen action suits. Downstream private property owners are about to get on the band wagon, before state agencies and local government start forcing us to clean up pollution and sediment generated by upstream property owners, including local government).

There are numerous Supreme Court cases (state and federal) that hold that if government permits a nuisance or trespass to private property, an easement is created over the receptor properties that may be a "taking" of the receptor property in violation of the State and Federal Constitutions.

The ultimate goal of land use regulations is to separate conflicting uses, facilitate fire fighting, creating livable arrangements of space and to protect private and public property from trespass and pollution.

Government is also obligated to make sure that any pollution on any given tract of property is contained, so the public and other property owners are not forced to pay for it later.

In fact, a true free-market economy requires that costs of preventing pollution should be paid by the consumers of the product or service, not by the public or the downstream property owners.

Why should downstream property owners and the public suffer and be forced to pay for any off-site pollution? Where is the case law that allows upstream property owners to pollute the property of downstream property owners?

I propose a shift in focus from the cost to the upstream land owner to the real costs imposed on downstream property owners, including public waters.

After all, that has been the primary function of property rights law for centuries.

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