Thurston County asks Court of Appeals to review injunction ordering work to address stormwater contamination

OLYMPIA, Wash. — Thurston County asked the Washington State Court of Appeals, Division 2, on June 10 to accept discretionary review of a Superior Court injunction that requires the county to take steps to address coliform contamination flowing through a county storm drain and into Puget Sound.

For the record, Jeff Myers, counsel for Thurston County, told the panel the county is seeking review because the injunction effectively makes the county “the guarantor of water quality” entering its drains and imposes an affirmative duty to “go out there and fix the problem.” Myers argued the contamination at issue is caused by wildlife defecation in the watershed and was not introduced by the county, so the county has no mandatory duty to abate it. “We don’t believe that there is any such duty,” Myers said.

Samuel Cloche, counsel for respondents Fisherport LLC and Jeff and Stacy Fisher, countered that the injunction is narrowly tailored and largely preserves the status quo by requiring the county to continue working with the homeowners association and the Department of Ecology to address discharges. Cloche argued that statutory nuisance law supports the injunction, saying the county’s collection and concentration of runoff into a pipe redirected material that would otherwise have flowed diffusely and that the county has known about a failing bioswale for years and took insufficient steps to stop its effluent from entering the county system. “You’ve got a nuisance, a clear statutory nuisance,” Cloche said.

Cloche urged the court to find a likelihood of success on the nuisance claim. He argued the common-enemy doctrine should not shield the county because the county accepted and concentrated the HOA’s effluent into its storm pipe, and he invoked a failure-to-enforce theory under the county stormwater code, asserting (1) a statutory duty to obtain compliance, (2) actual knowledge of the violation, and (3) that the Fishers fall within the protected class the ordinance was intended to protect (both recreational and commercial fishers).

Myers replied that the Superior Court’s order lacks findings explaining why the county has a duty to remediate or why the nuisance-on-the-merits finding is likely, and he emphasized the risk that a court-ordered remediation plan enforced by contempt would substantially curtail the county’s discretion and resources. He also told the panel that the county has long-held easements and a stormwater conveyance system dating back decades and that the Clean Water Act permitting framework and Department of Ecology statements in the record weigh against treating the county as the source of the contamination in this factual setting.

The court asked multiple questions about the injunction’s scope, enforceability, and the practical impact of ordering the county to bring the drainage into compliance with water-quality standards. Neither side reported a formal remedy adopted at the hearing; instead, the court said it would issue a decision as soon as possible and took the matter under advisement.

The hearing focused on three central disputes: whether the nuisance arises from county activity or wildlife, whether common-law and statutory exceptions (common-enemy doctrine, public-duty doctrine) bar relief, and whether the record supports the Superior Court’s decision to order affirmative remedial steps. The court did not rule at the hearing.

Next steps: The Court of Appeals will issue a written decision on the county’s motion for discretionary review. No date was announced at the hearing.