News - Local News

POSTED: Monday, Aug. 31, 2009

State appeals court upholds fines for muddying Whatcom County creek

A state appeals court said the state Department of Ecology was correct in levying fines against a developer for letting muddy stormwater flow into a salmon-spawning creek tributary near Ferndale.

A Monday, Aug. 31, ruling by the Court of Appeals, Division I, states that I-5 Properties violated its stormwater permit when developing land at the I-5 Industrial Center. The business park is located along Atwood Road, just north of the Interstate 5-Grandview Road interchange.

But an attorney for the landowner said the dirt was washed from agricultural land on site, and it wasn't caused by the construction. The ruling has major ramifications for farmers throughout the state, he said.

Ecology had fined the company $82,000 for violating its permit and letting muddy water flow for several months into a tributary of California Creek, according to the agency. Muddy water can harm aquatic life, including salmon.

"We're pleased that the court upheld the bulk of this penalty," Ecology spokesman Larry Altose said. "The ruling supports our work to ensure a level playing field for the majority of developers, who take environmental protection seriously."

But Doug Robertson, attorney for I-5 Properties, said the court erred in its decision. The land had been farmed for 40 years, and it had been cleared for growing potatoes. It was that farmed land that resulted in muddy water, he said.

"This is a very important decision for property owners and the Department of Ecology because with this decision the Department of Ecology now apparently has the authority to exercise against every farm in the state," he said.

The U.S. Congress, which wrote the law and then delegated to states to apply it, had exempted agricultural activities from the stormwater permit, he said. Then Washington state added it back in.

"Can the state of Washington override the U.S. Congress and say you gave us a statute to enforce, we're going to amend it? I don't think so," Robertson said.

The muddy water also came after the major storm of October 2003 hit.

"If we had Hurricane Katrina, under the Court of Appeals ruling, my client would still be liable," he said.

Altose countered that if soil is part of a construction site that is covered by a stormwater permit, then the soil is part of that permit.

After the fine, I-5 Properties appealed to a state pollution control board, which ruled in Ecology's favor. The president of I-5 Properties is Al Jansen.

The company then appealed to Whatcom County Superior Court, which ruled in the company's favor. Then, Ecology appealed to the state appeals court, which on Monday mostly ruled in Ecology's favor, though it did decide that Ecology shouldn't have fined the company for some of the alleged violations, and it told the pollution control board to reduce the fine.

It's unclear by how much the fine will be reduced. Robertson said he hasn't yet discussed with his client whether they'll appeal to the state Supreme Court.

MORE INFORMATION

Read the Court of Appeals decision: Click here.

Read the Pollution Control Hearings Board decision: Click here.

Web site for business park: i-5industrialcenter.com.