I can’t begin to estimate the number of times I’ve typed “Kitsap County Surface and Stormwater Management Program” over the past 20 years in stories about pollution in Kitsap County and the need to clean up local waterways.
But my typing fingers are already offering thanks for a new, shorter name, which will no doubt save some ink as well.
We won’t be talking about the “swim program” anymore when trying to pronounce the abbreviation, SSWM. I hope we won’t need any abbreviation for the new name, which is “Clean Water Kitsap.”
“Clean Water Kitsap” nicely wraps up the goals and image of the long-running program with just three words. It’s a good name with an up-to-date style.
This is the program that collects stormwater fees from properties in unincorporated Kitsap County and uses the money to track down pollution, reduce stormwater and help people do the right thing. The spirit of the program is captured in a new video you can see on this page.
Four agencies receive portions of the stormwater money and coordinate their efforts to clean up our local waters. Here is a short summary of what they do:
Kitsap County Public Works (Stormwater Program): Maintenance of public stormwater systems, inspection of private systems, upgrades to regional systems, street sweeping, watershed monitoring and public education.
Kitsap Public Health District: Countywide monitoring of streams, lakes and bays; pollution identification and correction programs; pollution advisories; public-health investigations; and septic system education.
Kitsap Conservation District: Farm-management assistance and planning; rain garden and green infrastructure grants and assistance; and backyard habitat grants.
WSU Kitsap Extension: Training for stream stewards, beach watchers and rain garden professionals; and coordination of various volunteer projects.
I wrote about the newly approved name Clean Water Kitsap in November (Kitsap Sun, Nov. 29, 2013, subscription), when officials began planning on how they would roll out the new name and logo. Some people wanted to start using the name right away, but organizers kept a lid on it.
As of today, the new name is official and will be used with a new logo. A new website is coming.
I wrote a brief story for tomorrow’s newspaper (Kitsap Sun, May 22), but I could not attend today’s dedication because of other reporting commitments.
From a news release from the county, we get these quotes:
Kitsap County Commissioner Linda
Streissguth:
“It seems fitting that we are making this change in 2014, at the
20-year mark of this innovative and nationally-recognized program.
It is built upon partnerships between agencies, volunteers and
community groups.”
Kitsap County Commissioner Rob Gelder:
“Our community may not know what their stormwater fees pay for or
think about stormwater management every day. But, Kitsap residents
benefit every day – rain or shine.”
The site of the dedication was an overhauled stormwater pond north of Silverdale. The pond, with 2,000 young plants, will increase stormwater storage by 20 percent and provide habitat for birds and other wildlife.
Chris May, manager of the county’s Stormwater Program,
speaking of the revamped pond :
“Thanks to the Public Works crews for transforming this ‘water
prison’ to a water quality improvement project for Clear Creek and
a community amenity. As we move to greener stormwater solutions,
it’s facilities like this that will help restore our streams and
Puget Sound.”
The problem with Kitsap County using storm water utility funds is that it’s not longer just funding a utility.
If legally challenged, there is a very high probability the Kitsap County SSWM fee would be found to be significantly used for a general public good, and that makes it an illegal tax.
The State legislature could change state laws to permit wider use of a utility fee, but that is not in the works. And the County Commissioners seem oblivious to what the legal limitations of a utility fee are.
36% of storm water utilities legally challenged since 2000 in the United States have been found to be a tax because the government jurisdictions have exceeded the rules of limiting expenditures to what a specific utility fee can pay for (it’s embedded in state laws and court decisions).
For example, the Idaho Supreme Court found Lewiston, ID’s storm water utility invalid because it used the funds for street sweeping. The court found street sweeping was a required public service for public health and sanitation, and funding of a general public good was a general tax responsibility. Court order SSWM fees to be reimbursed.
Kitsap has pushed the funding envelope further than just about any other Washington State jurisdiction. It’s only a matter of time to see if this will survive a legal challenge.
Clean Water Kitsap was formulated under RCW 36.89, which allows fees to be collected for stormwater control facilities, according to county officials. I don’t see any reference to the word “utility” in the law, but activities would have to fall under this definition:
Fundamental basis for a stormwater fee was established in Washington State in 1986 for the purpose of flood control:
RCW 90.03.500
Storm water control facilities — Imposition of rates and charges — Legislative findings.
The legislature finds that increasing the surface water or storm water accumulation on or flow over real property, beyond that which naturally occurs on the real property, may cause severe damage to the real property and limit the gainful use or enjoyment of the real property, resulting in a tort, nuisance, or taking. The damage can arise from activities increasing the point or nonpoint flow of surface water or storm water over the real property, or altering or interrupting the natural drainage from the real property. The legislature finds that it is in the public interest to permit the construction and operation of public improvements to lessen the damage. The legislature further finds that it is in the public interest to provide for the equitable imposition of special assessments, rates, and charges to fund such improvements. This shall include the imposition of special assessments, rates, and charges on real property to fund that reasonable portion of the public improvements that alleviate the damage arising from activities that are the proximate cause of the damage on other real property. Except as otherwise provided in RCW 90.03.525, these special assessments, rates, and charges may be imposed on any publicly-owned, including state-owned, real property that causes such damage.
RCW Chapter 86 is all related to County flood control improvements.
Washington State counties can establish a tax for a river improvement fund. Kitsap County has not done that, and K.C.’s SSWM fee is not in any way associated with a river improvement fund or RCW Chapter 86.
Kitsap County has a stormwater fee, and fees are like using bond proceeds … they are restricted use monies. Taxes, on the other hand, can be used for whatever legal purpose the legislative body decides to use them for.
The health department, conservation district, and WSU extention services are performing multiple programs far outside of what state law currently allows if the county is paying for these programs with SSWM fees.
Essentially, the County can perform everything required by the NPDES-II permit using stormwater fees.
Perhaps state laws should be changed to expand the use of stormwater fees to water quality monitoring (there are no water quality standards for storm water), health district work, beach monitoring, stream restoration, fencing domestic animals from streams, improving fish passage, etc, but that isn’t the current state law, and Kitsap County is taking a significant legal risk by ignoring existing laws.