Stormwater Permit Loopholes Risk Endangered Species Habitat

I appealed two stormwater discharge permits to the Pollution Control Hearings Board (PCHB). Stormwater permits are supposed to limit the amount of pollution that drains into lakes, rivers and marine waters.

I became concerned when I saw how Oregon Spotted Frog egg masses would dry out and kill thousands of tadpoles. These frogs are listed as threatened by the federal government and endangered by Washington State. They need a prolonged shallow hydroperiod—very specific conditions. In 2013 I found Oregon Spotted Frogs in an agricultural field near ancient peat wetlands near Kirsop Road. This was exciting as I had looked for this species in King and Pierce Counties to no avail. They are extremely rare, yet here they were in Thurston County and Tumwater.

Then in March of 2024 a developer gave public notice of a plan to build stormwater ponds that discharge to these sensitive wetlands near Kirsop Road. I had found the spotted frogs in the wetlands near Kirsop Road and had commented on the SEPA DNS

(Determination of Non-Significance) in 2018 when the proposal was first filed. At that time the proposal laid out stormwater ponds a long distance away from Kirsop Road, where so many roads sink into the ancient peat underlying them. The US Department of Fish and Wildlife commented on the 2018 proposal saying that the developer should avoid changing the water levels in the wetland, should avoid creating ‘ecological traps’ in the stormwater ponds, and should avoid creating bullfrog habitat. With those and other future provisos, the 2018 SEPA was approved.

But in 2024 the stormwater ponds in the proposal were platted to place stormwater ponds right next to the sensitive habitats on Kirsop Road, exactly where federal agency staff said they could create ecological traps. So I appealed the 2024 decision to approve the construction permit to the PCHB. By July of 2024 I had appealed both the construction permit and the post-construction permits for the development. I also asked the Department of Ecology to review and consider impacts from the creation of ecological traps and additional discharges. A plan needs to be set up to manage the special status frogs that would find their way there. After all, the SEPA had been approved based on the layout of houses and the stormwater system submitted in 2018. Now, in 2024, the map layout was completely different–placing the stormwater pond in even closer proximity to sensitive habitats.

Who is Responsible for Reviewing the Impacts of Construction Permits?

The issue is this: frogs of all types can be attracted to stormwater ponds. Many amphibians of all flavors occupy stormwater ponds. But, if water ponds some 10 inches deep in these ponds in February, frogs are attracted and lay eggs. The tadpoles take until August to metamorphose. If water levels are not managed, the stormwater pond itself (created by turning uplands into a pond) dries out and becomes a man-made ecological trap. Secondly, the Department of Ecology had not reviewed the project because they are not responsible for discharge to a water body that is not listed as impaired.

The first permit I appealed is a Construction General Stormwater Permit that expires at the end of construction. I learned there is a separate permit that covers all activities related to all post-construction stormwater management. This is called the Phase 2 Municipal Stormwater General Permit. Both are appealable if you see the notices in time.

Over 100 cities and counties tin our lowlands that once had a lot of salmon and habitat have this Phase 2 NPDES permit. They are mostly smaller cities or stormwater systems that still have some ‘habitat’ left. These permits are developed and issued by Washington Department of Ecology, which administers the Clean Water Act for the Environmental Protection Agency. These permits are reissued programmatically every 5 years. They authorize continued discharges and management of stormwater to the ‘covered areas,’ which include stormwater systems, wetlands and streams and seasonally flooded non-wetland areas.

One of many problems is that these two permits do not regulate flows with volumes less than the predicted modeled ‘peak’ flow. The 100-year ‘event’ is the flow that is expected to occur once every 100 years.

Why are increasing winter flows and decreasing summer flows bad? As climate change impacts increase, we are having more periods of drought. We have species that need a ‘prolonged hydroperiod, ’a prolonged period of shallow water into late summer. Forcing water to runoff earlier in the season (from winter storms+ impervious surfaces) means less water for special status frogs in late summer, and less water for aquifer recharge. Forcing water to runoff earlier in the season means beaver dams are lowered where Oregon Spotted Frogs need late season water. These rare frogs only occur in a few places. I know of three such marshes in Tumwater that currently are not at full buildout. Unfortunately, these places are zoned for 2 to 4 houses per acre.

As we address housing needs to build out the 100+ smaller cities and counties covered by the Phase 2 Municipal Stormwater permit, we will lose late season flows, threatening any salmon other than chum. Paving over watersheds results in changed hydrology, changed vegetation communities, and changed flooding frequencies. We see chum in our streams. Where are the coho, steelhead, and chinook, and the aquatic species?

Case in point. I helped write a vegetation management plan for a mitigation bank of the 600-unit ‘Preserve’ development on 93rd Ave in Tumwater. I was told peak flows would be less due to the proposed giant stormwater ponds, so the 6++ miles of Oregon Spotted Frog marsh just downstream in the Salmon Creek Basin would be safe. And conservation measures were written into the plan in case the stormwater caused problems for downstream special status species.

But, a rain-on-snow event caused the stormwater ponds and meadow to fill up from underground and surface water. The entire landscape became effectively ‘impervious’. New water could not infiltrate. This ‘less than peak flow,’ resulted in an increase of over 100-acre feet of water annually because of upstream impervious surfaces. This caused the impacted Hopkins Ditch District to need a state permit to increase the intensity and frequency of ditching through the peat marshes–blowing out beaver dams and directly harming the rare Olympic Mudminnow and Oregon Spotted Frogs that live there.

The Ditch District will ultimately likely obtain all permits, including federal, to ‘maintain’ ditches at a frequency and intensity never needed before the watershed was paved. It is too bad that roads, houses and driveways were built where early settlers drained marshes in the hopes of ‘reclaiming land. Such ditches overgrew supporting fish and wildlife.

The Water Pollution Control law, RCW 90.48.020, states “water quality shall be determined by the citizenry”

In May of 2025 my two appeals were dismissed by the PCHB. Why? The PCHB, which purportedly can ‘notice’ federal law, did not in this case. Also, I was not granted standing. But, my experience appealing to the PCHB, though fruitless, was priceless. I got ‘educated’ in water law which is truly where the rubber meets the road.

We often discuss water issues and stormwater impacts. What would you like to see improved? The Department of Ecology is in the process of rewriting water quality and in- stream flow rules. Based on my experience, I would like to improve the rules to prevent the catastrophic impacts to wildlife due to stormwater and ditch management. We need all agencies to work together—federal and state wildlife agencies collaborating with the Department of Ecology. Review discharges to high quality waters. Do site-specific review. Avoid turning groundwater into surface water ponds where these adjoin Oregon Spotted Frog marshes. If they do, then manage water levels appropriately. Create appropriate ponds that do infiltrate.

You Can Provide Input on New Water Quality Rules

For more information, go to:

https://ecology.wa.gov/regulations-permits/laws-rules-rulemaking/rulemaking

Look for WAC 173-217 – State Waters Alteration Permit. This will eventually replace Dept. of Ecology’s current permitting process of authorizing impacts to state waters–streams, lakes, rivers and groundwaters. Do you want to improve rules for stormwater quality? These include all things biological, physical and chemical. Please get on the email list by contacting SWAPrulemaking@ecy.wa.gov.

Look for WAC 173-513 – In-stream Flows for the Deschutes River. This rule change is supposed to consider the watershed plans. The Deschutes River Watershed plan says impervious surfaces increase runoff in winter and decrease it in summer.

– Tell Dept. of Ecology in-stream flow measures must consider watershed plans and consider how impervious surfaces change in-stream flows.

– Tell Dept. of Ecology to review permits that discharge to non-impaired waters to assess impacts to wildlife and our aquifers. Also, Dept. of Ecology must improve or restrict stormwater runoff measures called Low Impact Development, which cannot always be used, and can result in the creation of ecological traps for wildlife.

Please contact Danielle.gallatin@ecy..wa.gov.

Dept. of Ecology does have a daunting task balancing sustaining in-stream flows with the requirements of RCW36.70A.630 of the Growth Management Act, which limits changes to zoning density and its impervious surfaces. The proposed panacea is ‘use Low Impact Development’. Yet that cannot be used in many locations due to groundwater levels and impervious surface requirements.

But important habitat for threatened species occurs in the Urban Growth Areas, where zoning is insane. We cannot put 4 houses per acre on top of threatened Mazama Pocket Gophers. On top of Oregon Spotted Frogs. On top of Streaked Horned Larks. Nor even in the watershed that drains to these places. Endangered and threatened wildlife occurs where they occur. Unfortunately, they don’t relocate well.

Our water quality rules are made by the citizenry (RCW 90.48.020). That’s us.

Bonnie Blessing enjoys the aesthetic, ecological, educational, recreational and scientific value of our natural heritage.