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3 thoughts on “Streamlined name is simple: ‘Clean Water Kitsap’

  1. 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.

  2. 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:

    “The words ‘storm water control facilities’ as used in this chapter mean any facility, improvement, development, property or interest therein, made, constructed or acquired for the purpose of controlling, or protecting life or property from, any storm, waste, flood or surplus waters wherever located within the county, and shall include but not be limited to the improvements and authority described in RCW 86.12.020 and chapters 86.13 and 86.15 RCW.”

  3. 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.

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