King County challenges legality of Snohomish County requirements on Brightwater wastewater facilities

2005 Archived News

King County has filed three lawsuits against Snohomish County for adopting ordinances that could delay or deny the timely siting of regional wastewater treatment facilities to protect public health, water quality and the environment.

King County filed the petitions with the Central Puget Sound Growth Management Hearings Board and King County Superior Court, requesting review of the recent Snohomish County ordinances. The petitions explain that the ordinances violate both the state Growth Management Act and the State Environmental Policy Act.

King County has reached agreements with every local jurisdiction but Snohomish County on ways to mitigate impacts of building and operating Brightwater wastewater facilities in their communities. For Brightwater, King County has committed to a state-of-the-art odor control system costing $50 million as well as $88 million for wetlands and habitat protection, public trails, enhanced stormwater treatment, and other features to benefit affected communities.

In one petition, King County is asking the growth board to recommend that Gov. Christine Gregoire impose financial sanctions against Snohomish County, as authorized under the Growth Management Act, or GMA. The petition stresses Snohomish County's continuing failure to comply with the GMA and the growth board's orders.

Snohomish County has been under an order from the growth board and Thurston County Superior Court to revise its essential public facilities ordinance so it complies with the GMA and an earlier decision of the growth board. Under the law, the board must first approve any new ordinance on the subject of a board decision involving a finding of invalidity before the ordinance has any legal effect.

On Brightwater, Snohomish County failed to ask the board to review and approve the county's new seismic and odor ordinances. So King County has asked the board to find that Snohomish County's failure to seek board review means the two recent ordinances are "null and void" until the board first conducts the necessary review.

In a second petition, King County is asking the growth board to invalidate two new Snohomish County ordinances because they violate the state GMA. The ordinances adopted by Snohomish County in April deal with odor and seismic issues.

The odor provisions single out wastewater plants and hold projects such as Brightwater to a standard far higher than that for other types of facilities. The King County petition explains that the process and uncertainty created by the seismic ordinance will make timely siting of Brightwater impracticable for several reasons.

King County's petition also explains that the seismic ordinance adopted by Snohomish County is "applied very selectively (and illogically)" to certain facilities, such as wastewater plants, but not to gas stations, fuel farms or multifamily residences.

Existing law provides Snohomish County with adequate review and conditioning authority on earth impacts. But Snohomish County adopted more regulations affecting Brightwater that would involve both a new open-ended hearing before a hearings examiner and another appeal hearing to the County Council.

King County is asking the growth board to find that King County is entitled to damages resulting from the delay caused by Snohomish County's continuing obstructive tactics. King County is also asking the board to find that the Snohomish County Council's conduct violates King County's substantive process and equal protection rights.

"The substance and timing of this duplicative process represents just the latest effort by Snohomish County to delay siting of Brightwater through a process the growth board had earlier found to be unending," said Don Theiler, director of the King County Wastewater Treatment Division.

In the third action, King County is asking its Superior Court to find that Snohomish County violated the procedural requirements of the State Environmental Policy Act. This lawsuit also asks the court to find that Snohomish County had no legal jurisdiction to adopt its duplicative odor ordinance - because the Puget Sound Clean Air Agency has the responsibility to regulate odors such as those from wastewater treatment plants.

"Snohomish County chose not to conduct any environmental review before adopting the seismic and odor ordinances," said Christie True, manager of King County's wastewater capital improvement program. "These ordinances could prevent King County from building Brightwater by 2010 and thus not meet the urgent regional need for more wastewater capacity in north King County and south Snohomish County."

As successor to the Municipality of Metropolitan Seattle (Metro), King County is responsible for meeting the regional need for more wastewater capacity by the year 2010. In 2003 after years of review and public involvement, King County chose locations for Brightwater facilities, which include a treatment plant along State Route 9 in south Snohomish County.

Since early 2003, the Snohomish County Council has adopted several ordinances about essential public facilities. The state growth board earlier found that two of the county ordinances violated the essential public facilities provisions of the state GMA. It invalidated both ordinances. In March, the Thurston County Superior Court generally affirmed the growth board's decisions, continued the board's order invalidating Snohomish County's ordinances on essential public facilities, and sent the cases back to Snohomish County to correct the identified legal problem.

King County's Wastewater Treatment Division protects public health and water quality for more than 1.4 million residents in King, Snohomish and Pierce counties. Its existing treatment plants now serve more than 170,000 people who live and work in south Snohomish County. By the year 2030, forecasts project that more than 290,000 people will live and work in the Snohomish County area served by Brightwater.

The regional public utility has been preventing water pollution for 40 years. The utility has contracts to provide wastewater treatment for 17 cities and 17 local sewer agencies. The 34 local sewer agencies include Bothell, Brier and the Alderwood Water and Wastewater District, Cross Valley Water District, and Olympic View Water and Sewer District. The agencies also serve Mill Creek, Woodway, Mountlake Terrace and unincorporated areas in south Snohomish County.