Black Diamond violates state, federal clean water acts

By not approving an ordinance adopting the state’s 2012 Stormwater Management Manual, the city is now at risk of state and federal fines, plus third party lawsuits.

City attorney David Linehan recommended to the city to adopt the original 2012 Stormwater Management Manual ordinance, and not the amended ordinance pushed by council members Pat Pepper, Erika Morgan and Brian Weber. Photo by Ray Still.

While the Black Diamond City Council was able to come together enough to pass a last-minute temporary budget, the dawn of the new year also saw the city fall out of compliance with both the state and federal clean water acts, which brings a risk of hefty fines.

During the Jan. 5 meeting, the council was unable to approve an ordinance adopting the state Department of Ecology’s 2012 Stormwater Management Manual.

The council has been discussing the Stormwater Management Manual for months, ever since its public hearing on Oct. 6, 2016.

A week before the hearing, Councilwoman Pat Pepper submitted an amended ordinance for adoption.

Mayor Carol Benson said the amended ordinance veered away from the language state law requires all ordinances to use.

City Attorney David Linehan and Public Works Director Seth Boettcher shared Benson’s concerns, among others.

The council majority – Pat Pepper, Erika Morgan and Brian Weber – approved 3-2 the amended ordinance, which Benson vetoed, stating that the amended ordinance did not receive legal approval and the language of the ordinance was concerning.

Councilwomen Tamie Deady and Janie Edelman – the council minority – attempted to approve the original ordinance, but was outnumbered by the majority 2-3.

The ordinance reappeared at the Dec. 15, 2016 meeting, where the council again voted to pass the amended version of the ordinance, which Benson vetoed.

The ordinance was not brought up again in council for the rest of the year, which put the city out of compliance with its Phase 2 National Pollutant Discharge Elimination System permit.

The permit is issued by the DOE under both the state and federal clean water acts, and the city was required to adopt the 2012 Stormwater Management Manual by Dec. 31, 2016.

“I understand you are unable to provide an ‘anticipated date’ for correcting this violation,” DOE Municipal Stormwater Specialist Rachel McCrea emailed the city on Dec. 22, 2016. “I recommend that you continue to assess the situation into the new year and send us an updated (email or letter) with a timeline for a path forward as soon as possible.”

McCrea included in her email a short description of the “risks of noncompliance” which include fines from the DOE, the federal government and potential third party lawsuits.

Benson said at the Jan. 5 meeting that the city has not received any notices from the DOE, the federal government or impending lawsuits.

Without approving the 2012 Stormwater Management Manual, the city will continue to operate under the 2005 Stormwater Management Manual.

ONE LINE OF DIFFERENCE

The argument over the 2012 Stormwater Management Manual boils down to a single line of text that differs in the ordinances.

The amended ordinance text reads, “the 2012 Edition of the Department of Ecology’s Stormwater Management Manual for Western Washington… as amended in December 2014, and as subsequently amended by the Department of Ecology or applicable law, is hereby adopted…”

Boettcher said the “subsequently amended” language means that city code would have to be updated every time the DOE made a change to its Stormwater Management Manual, which presents the city with many administrative difficulties, even if the language is legal.

“When code is in a state of flux – for instance, this came out in 2012 – if we had adopted it automatically, we would have found ourselves in the middle of a battle between Washington cities on clarity issues and how they are going to administer something…. How can the public, or the environmental community, or the development community comment on what you’re changing to some unknown future standard?” he said at the Oct. 6 public hearing. “From time to time, this will go through updates. It will go through a process. When the Department of Ecology finishes their process and then recommends it to us through our permit to adopt it, that’s the time to adopt the new updates.”

In a Dec. 22 email to the city, the DOE stated that it also recommends the city not use the “subsequently amended” language in the amended ordinance.

“Based on my experience administering the municipal stormwater permits over the last 9 years, I have found instances where this automatic adoption of amendments was in code and created problems for the implementing jurisdictions,” wrote McCrea. “In fact, the Department of Ecology itself no longer uses such automatic ‘subsequent amendment’ language in NPDES (National Pollutant Discharge Elimination System)… We do not recommend that cities and counties with municipal stormwater permits include such automatic adoption of subsequent updates in their local codes.”

Weber wrote in a Jan. 7 email interview that the DOE doesn’t recommend automatic updates because, “some cities in the past were asleep at the switch and couldn’t implement them fast enough. It is perfectly OK to have an automatic update clause, but the implementation needs to be done right.”

ISSUES WITH LEGAL REPRESENTATION

The council majority also seemed to link their resistance to passing the original 2012 Stormwater Management Manual ordinance to their distrust of the city’s attorney, David Linehan, and the firm he represents, Kenyon Disend.

“According to the letter from DOE’s Rachel McCrea, ‘Because this is a legal question, the decision about whether this automatic ‘subsequent amendment’ adoption language should be included in local code should be informed by the jurisdiction’s legal counsel,’” Morgan wrote in a Jan. 6 email interview. “But Black Diamond truly does not have legal counsel…. How could I possibly trust an attorney who has been voted down three times by the City Council? Benson’s self-serving attorney directly contradicts the opinions of Washington’s MRSC, the Attorney General opinion on legal services, and the Black Diamond Municipal Code.”

At one point during the Jan. 5 meeting, Morgan said she saw some room for compromise on the Stormwater Management Manual ordinance.

“I’m thinking there might be an opportunity here for a bargain, if qualifications for a new attorney can go up…,” she said, trailing off.

A recess was called soon after her request, and the idea was not revisited.

Linehan has been employed for months solely at the discretion of Benson, who has signed multiple $15,000 contracts to keep him employed as the city attorney.

Pepper, Morgan and Weber have said the council has contracting authority to hire a city attorney, and has several times attempted to hire their own legal counsel over the past year, as well as argue that Linehan cannot be the city’s attorney, because the council has not approved his contract.

POSSIBLE FINES

Possible fines for the City of Black Diamond by Ray Still on Scribd

With Black Diamond no longer compliant with its Phase 2 National Pollutant Discharge Elimination System permit and the state’s and federal government’s clean water acts, the city could face weighty fines.

RCW 90.48.144 allows the DOE to fine the city up to $10,000 for every day the 2012 Stormwater Management Manual is not adopted.

At the moment, there is no work being done to levy a fine against Black Diamond, McCrea said in a Jan. 6 interview.

“In any situation where a permittee is out of compliance, there is a provision in the permit that they self-report their non-compliance status and what they’re doing to fix it and when it will be fixed,” McCrea said, adding that the city has officially notified the DOE, but hasn’t submitted a timetable. “We look at every situation very closely. It certainly takes us time to assess the details of everything before we decide how to use our enforcement discretion.”

If a fine is levied against the city, it will encompass all the days the city was out of compliance, starting on Jan. 1.

The federal government can also levy fines against the city, from administrative penalties of $16,000 to $187,500 per day of violation, as even judicial fees of up to $51,570 per day, plus others.

The city is also open to lawsuit from third parties under either the state or federal clean water act.

In his Jan. 7 email, Weber wrote that the council won’t be stampeded into hasty action, as there is little to no threat of Department of Ecology enforcement.

“They have never imposed a penalty like what the Mayor was using to threaten the council. There is no penalty and there won’t be… unless the Mayor continues to delay implementation,” he wrote. “I welcome DOE’s involvement because maybe they can help the Council and the public get more transparency from this administration.”

OTHER HIGHLIGHTS

• Morgan was again nominated and confirmed as the city’s mayor pro tempore. Deady opposed the nomination.

“I really fear that if anything ever happened to Mayor Benson, God forbid, that you stepped in and would harm the city… I truly fear Erika Morgan sitting in that position.” Deady nominated Edelman as the mayor pro tempore, but Morgan was confirmed 3-2 by herself, Pepper and Morgan.

• The council argued over whose responsibility it was to pay an $18,000 legal bill for the Talmadge, Fitzpatrick and Tribe law firm, which the council voted 3-2 to hire to advise the council in matters concerning the firing of former city attorney Carol Morris and the legality of the council’s rules and procedures, passed a year ago.

It is clear that the bill has not been paid, but Benson said the bill was withdrawn, and in any case, the invoice was sent to Pepper, and not the city, because Pepper signed the contract as council president. Morgan and Weber said the bill was not withdrawn, and Pepper said that it’s the city’s responsibility to pay the bill.

The council voted again to pay the firm, approved 3-2 with Pepper, Morgan and Weber supporting. Benson said the city will not pay the bill.

• A resolution confirming council standing committees was passed 3-2, also with Pepper, Morgan and Weber supporting. Benson held that the standing committees are illegal, as they were created in a way that violated the Open Public Meeting Act, among other allegations. The council majority said that as council, they reserve the right to control how the council is run, including the standing committees.

• A grant agreement with the Transportation Improvement Board for the city’s Robert’s Drive maintenance project was sent to committee, as well as an ordinance amending the 2017 budget to include the grant. Also sent to committee were the April 21 and June 9 council minutes.

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