Insight

WA Supreme Court Holds Vesting Rights Do Not Extend to Stormwater...

The result of the case is likely to have immediate and significant implications for a large number of property owners and developers in Washington.

Stormwater Regulations
Heather Burgess

Heather Burgess

January 23, 2017 12:00 AM

The Decision

On December 29, 2016, the Washington State Supreme Court issued a decision in Snohomish County et al v. Pollution Control Hearings Board holding that local storm water regulations adopted under the federal and state stormwater permit system are not “land use control ordinances” subject to state statutory vested rights protections.

The result of the case is likely to have immediate and significant implications for a large number of property owners and developers in Washington.

The case involved the implementation of the Department of Ecology’s Phase I 2013-2018 Municipal Stormwater Permit, which governs pollutant discharges to large municipal storm sewer systems under the federal National Pollutant Discharge Elimination System (“NPDES”) permitting program. Local governments subject to the Phase I permit were required to adopt ordinances to implement minimum requirements, thresholds, and definitions in the new permit to apply to all applications for development or redevelopment after June 30, 2015, which had not started construction by June 30, 2020. Snohomish County, King County, and the Building Industry Association of Washington challenged this permit condition because it compelled those jurisdictions to “retroactively apply new storm water regulations to completed development applications” contrary to state vested rights doctrine. The Pollution Control Hearings Board (“PCHB”) ruled in favor of Ecology; on appeal, Division II of the Court of Appeals reversed the PCHB, holding that the subject stormwater regulations were “land use control ordinances” and therefore subject to vested rights protections, applying the terminology used in the state subdivision (RCW 58.17) and building permit (RCW 19.27) statutes.

In a unanimous decision, the state Supreme Court reversed the Court of Appeals, holding that the vested rights doctrine does not preclude the retroactive application of stormwater regulations adopted by local governments in compliance with the 2013 Phase I permit. In reaching this conclusion, the Supreme Court determined that in the context of the municipal stormwater permits, local storm water regulations result from a state (and federal) mandate. Based upon review of legislative history and case law, the Court reasoned that vested rights protections were designed to limit the application of regulations that are within municipal discretion to enact, as opposed to regulations that local governments are required to adopt in order to comply with state, or federal, law.

Applying the Decision

What will the decision require local governments to do? At a minimum, Washington cities and counties subject to the Phase I and Phase II NPDES municipal stormwater permit requirements will be required to apply the provisions of new stormwater regulations to vested projects, including previously approved preliminary and final plats, for development applications submitted as of the date specified in the permit. For Phase I jurisdictions, this means the new stormwater regulations must be applied to all development and redevelopment applications which were submitted on after July 1, 2015. For Phase II jurisdictions in Western Washington, the corresponding application deadline is January 1, 2017, except for permittees in Lewis and Cowlitz Counties, which have until July 1, 2017, and the City of Aberdeen in Grays Harbor County, which has until July 1, 2018.

Where does the decision require new stormwater regulations to be applied? The Court decision applies to all cities and counties with coverage under Phase I and II municipal stormwater permits. With inclusion of Phase II, coverage includes essentially all Washington cities and counties containing regulated cities. Ecology maintains a complete list of all permittee cities and counties.

Importantly, the Phase II County permits (issued to Cowlitz, Kitsap, Skagit, Thurston, and Whatcom Counties in Western Washington) apply only to urban areas around permitted cities. Ecology also maintains a detailed map of permit coverage areas. Because the underlying reasoning of the Court’s decision in the case negating vested rights protections was based upon the adoption of the subject stormwater regulations as a result of state and federal requirements of NPDES permit coverage, we believe Phase II counties should not apply new stormwater regulations to projects located outside the mapped NPDES permit coverage area on the basis of this decision.

What does this mean for ongoing subdivision projects in covered jurisdictions?

1. Preliminary plat approved prior to the permit deadline, but complete development applications for plat improvements were not submitted: new stormwater regulations will apply to the development of plat improvements, as well as later permits for construction of individual homes after final plat.

2. Preliminary plat approved and complete development applications for plat improvements submitted prior to the permit deadline: plat improvements will not be subject to new stormwater regulations, but new regulations will apply to permits for development of individual homes after final plat approval.

3. Final plat completed prior to the permit deadline, construction of individual homes within the plat ongoing, but within five year subdivision vesting period: permit applications for development of individual homes within the plat submitted after the deadline will be subject to review and compliance with new stormwater regulations.

Implications and Impacts

In the short term, it seems that significant impacts are likely. Up to this point, plats have enjoyed at least a 10-year vesting period under state law, even longer for some projects following recession extensions under the subdivision statute. It is entirely possible, and even likely, that application of new stormwater regulations to permits for construction of plat improvements will result in loss of approved lots from the preliminary plat phase to final plat. And, more lots may be lost as new regulations are applied to the development of each individual lot within the subdivision at the time of building permit application. The full extent of the decision’s economic impact remains unknown; however, applicants may find some relief through use of deviation and infeasibility provisions found in most implementing stormwater ordinances.

At a minimum, project applicants will experience ongoing uncertainty and likely increased compliance costs. Rules will remain subject to constant change, and the development community will need to account for this potential risk. In addition, the decision is the latest in a series of Washington cases that appears to not recognize the constitutional underpinnings of the vested rights doctrine as it developed in our common law, a position sure to be used in challenges to other types of permits and projects moving forwards.

Related Articles

Checks and Balances


by Michael Sullivan

Ensuring probity and above-board behaviour in both the public and private sector is always important—and that importance can be particularly stark during a major crisis like the pandemic. An overview of a year’s worth of commissions and inquiries.

Australian Commission Governance Structure

Why Stablecoins Will Be Regulated


by Mladen Milovic

In Order To See Adoption, Stablecoins Must Clear These Hurdles

Why Stablecoins Will Be Regulated

Baraona Fischer & Cia on the Changes Coming to Tax Law in Chile


by Best Lawyers

Juan Manuel Baraona of the 2019 "Law Firm of the Year" award-winner for Tax Law in Chile discusses forthcoming regulations, career highlights, and his secrets to success in an interview with Best Lawyers CEO Phillip Greer.

Baraona Fischer & Cia LFOTY

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky