“You can’t put lipstick on a pig.”

That’s a saying that has been around far longer than I have, and I love its’ brevity and accuracy.

There’s another saying I love…

“You got a warrant?”

The proverbial pig, in this instance, is the federal and state-mandated laws requiring an ordinance covering illegal discharge of hazardous materials into the city's stormwater sewer system. This mandate, on multiple levels, is a perfect example of big-government at its’ worst. While the intentions of the law may be admirable, the way they unnecessarily hammer small communities like Pullman is reprehensible. Rather than let local governments work within the mandate of local citizenry, paper-pushing bureaucrats are shoving this monster down our throats, despite the best efforts of our Mayor and City Council.

On one hand, I can hardly believe there isn’t already a law in Pullman that prohibits the discharge of materials like oil or antifreeze into the sewer system. To me, that’s just a common-sense thing. Even the dumbest among us knows that’s simply not an ecologically and/or socially acceptable thing to do.

Oh… that’s right. There IS a law. And it has existed for over half a century. So before you go dump that waste oil into the storm drain, think twice. (See: RCW 90.48)

So, why do we need this ordinance again? 

According to Stormwater Services Program Manager Rob Buchert, the ordinance gives the city the ability to deal with illegal dumping (discharge) like this directly, whereas before, the State Department of Ecology would need to become involved. And from my perspective, that’s not an efficient way of doing business. For a flagrant violation of the law, immediate intervention is often required.

But you’re gonna bust me for washing my car? In my driveway? Oh, I don’t think so.

No, Buchert says matter-of-factly, Pullman citizens don’t have to worry about being ticketed or fined for washing their car. Or do they? 

It’s in the law, right?

Even our Governor and her staff seems confused by this environmental claptrap. Christine Gregoire spokeswoman Karina Shagren responded to questions about the prohibition by saying the governor has spoken with state Ecology Director Jay Manning and that his department will "fix the problem in a way that will allow people to wash their cars while still protecting our waters."

A day later, Manning threw down his own, clear “I don’t think so” statement when he stated, "It has recently become apparent that there is ‘significant confusion’ about residential car washing.” He repeated alternatives — washing over grass or diverting wash water away from drains. "Another option is to use a commercial carwash," the statement said. You’ll note he didn’t say washing your car in your driveway was ok.

Misha Vakoc, Stormwater permit coordinator for the Pacific Northwest region, said residential car wash runoff is allowed in storm drain systems under federal law but that states are permitted to go beyond that standard.

So which is it? And why is there confusion? And if there is confusion, why in the world is this being considered until the confusion has been mitigated and citizen’s concerns addressed?

Honestly, this isn’t an issue of interpretation. The law is clear and unambiguous. Under state law, you are prohibited from washing your car in your driveway, so long as the discharge from said activity hits said storm drain. So while Pullman officials might never punish someone for washing their car, you will be violating state law. 

What’s to stop Ecology from setting up a division of their own car wash nazis across the state to monitor and punish violators? What’s to stop Buchert’s successor, or über-environmentalists on the City Council to change their minds about enforcement, or possibly even the state leaning hard on local municipalities who are too cash-strapped to fight them? All it takes is the right extremist in the right office, and the framework will be in place to encourage exactly that.

So again - regardless of the current city “position” on the matter - it will be illegal under state law and local ordinance for you to wash your car in your driveway. Don’t be misled.

Now, on to the second part of this Stormwater equation and my second question, “You got a warrant?”

At the July 21 city council meeting Councilwoman Ann Heath voiced concerns over the city having overreaching authority to potentially enter private property to deal with stormwater violations. "This is not acceptable to me," she said. Ya think?

Here’s another first-hand account of the meeting from a colleague of mine, who blogged: “Barney Waldrop started pressing about whether city inspectors could go on private property or into private structures, including homes, to check for suspected hookups to the storm sewer without a court-ordered search warrant. The city guy and city lawyer had no answer except ‘trust us - we would never do anything that was not reasonable.’ Waldrop was not satisfied and soon the other members were chiming in with concerns.”

I addressed this issue directly with Buchert, and cited my concerns that unnecessarily vague laws open to interpretation can be, and often are - abused. Additionally, with distrust of government at an all time high, people like me are highly skeptical of any law that contains too much vague language. While I believe his intention is to operate in what we all might consider a reasonable manner – his successor may very well not share that disciplined approach.

His theory was that since all of the city staff were at-will employees, that an abusive staffer would have to deal with those checks and balances and risk their termination for operating aggressively. 

I think that’s a dangerous approach.

First, no citizen should be forced to unnecessarily run the gauntlet of city, state or federal bureaucracy. It’s time consuming and can be expensive, especially if legal counsel is required to extricate one’s self from the quagmire. 

Second, nearly every government bureaucracy I have ever seen operates in “cover your ass” mode. Regardless of what is right or wrong, if the city had, for example - an over-zealous stormwater Services Program Manager who overstepped his or her boundaries, a termination of that individual would be like blood in the water, you know someone’s gonna get sued, and that someone would be the city. So, governmental organizations and NGO’s alike tend to protect their own, sometimes at the cost of what is right, in order to save their own skin. 

Any time any government says “trust me,” all I have to say is “fat chance, put it in writing.”

So, the city attorney has had another crack at this mess, and apparently the change that has now been (or will be) added is that owners of private residences and businesses, in a non-emergency capacity, may refuse entry to a city worker and deny access to their private property. If the city has a problem with that, then they kick it up to Ecology, and if their request for access is denied, then they will obtain a legal warrant, and due process has been served. I like it.

But if you are naturally suspicious of government as I am, you probably saw that word “emergency” sticking out like a sore thumb. Ah, you’re getting good at this game, aren’t you.

Yes, right now, in an “emergency” situation that “threatens public safety” or “health” or “welfare” or yadda... yadda... yadda… the new ordinance STILL gives city staff the ability to trespass on private property to solve the problem. The EMERGENCY problem. And while we can all probably agree on a reasonable definition of “emergency,” you know damn well that expecting government to be reasonable can often be a stretch.

So again, I pressed Mr. Buchert. I wanted to know specifically, EXACTLY what he meant. And what he said, unequivocally, was the law is referring specifically to a situation where a sewer line breaks or backs up and raw sewage flows into the storm drain.

So, my question is, if there is currently only one kind of emergency that might compel a public works employee to legally violate your property rights, then why be coy about it or beat around the bush? Why list dozens of potential contaminants and couch ordinance in “interperetable” language?

Of course, this is done so that if a situation arises that has not previously been considered, that city government can do as they please and violate your rights without breaking the law. This gives me great pause, and I believe we should all be concerned.

Constitutional rights are serious, serious stuff - as are their proposed violation. 

Benjamin Franklin once opined “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

If the City of Pullman needs the ability, in very isolated and specific situations, to violate the property rights of any citizen, in order to respond to a crisis situation and protect the “greater good,” then those specific contingencies need to be spelled out in advance. Don’t provide a list of generic variables and generic “emergency” language. One person’s inconvenience is another person’s crisis. If we’re talking about raw sewage discharge, then say so. If city managers feel that’s too potentially limiting, then they should get together over a case of beer and come up with a half dozen additional eventualities.

And the bottom line in all of this… if there is truly something that comes up, something never previously considered, then someone is going to have to step up and put their job on the line and take action, and the ordinance can be amended at that time. Enough CYA at the expense of my constitutional rights.

Imagine the two officers searching for a criminal suspect who think he might be hiding in a particular residence but don’t have a warrant to pursue. 

“Say, Larry… that smell like raw sewage to you?” 

“You know, Bob - as a matter of fact, I believe it does.”

And down comes the door.

But let’s go back to car washing for a moment. Again, don’t think that this ordinance won’t be enforced eventually, regardless of what Mr. Buchert intends. If it were just up to him, we would probably not have the clause in the ordinance. But that’s just it - it’s not up to him. It’s up to the Washington State Department of Ecology. An unelected group of extremist environmentalists who have taken on the ultimate role of the nanny state. Don’t like big government in your face? Well get ready for it, because it’s already here and staring into your window. In this case, your dirty car windows.

I asked Councilman Keith Bloom - a man who is repeatedly on the record as being opposed to this mandate, “what if we just exclude the car wash language from the Pullman ordinance?”

His response… “Then we invite lawsuits from every environmental group out there. I’m not in a position to potentially spend millions of dollars of taxpayer money in that way.” He also said that if the citizens of Pullman felt strongly about the right to wash their cars in their driveways, then the best course of action would be to take this matter to the state and challenge it there.

While I normally agree with just about 99.999% of what Bloom says, I’m not sure I do in this instance. Of course, he’s correct in that Pullman already has a budget problem, and we’re not in the financial position to mount a massive legal effort. But then again, just because we seem to be between a rock and a hard place, doesn’t mean we should acquiesce. What message do we send to the state by doing so? Unfunded mandates are ok? Overreaching legislation from unelected government agencies are ok? If you want to slap us with a ridiculous requirement, wait until a down economy and you can have your way? Winston Churchill once said "An appeaser is one who feeds the crocodile, hoping it will eat him last."

So what’s the answer?

First, property rights must be protected, period - regardless of the inconvenience to the city.

Constitutionally, article 6 indicates that the U.S. Constitution shall be the supreme Law of the Land; and the fourth amendment protects citizens “against unreasonable searches and seizures [without] probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Therefore any city ordinance that attempts to diminish that law is unconstitutional, and any legal action against the city would likely be victorious. However, as I affirmed previously, no citizen should be forced to unnecessarily run the gauntlet of city, state or federal bureaucracy. The city council really needs to get this right. Define specific emergencies and the appropriate course of action, and leave it at that. 

Second, we must - as a city - figure out a way to send the message, by referendum or other means, to the State of Washington. They must understand clearly that their car wash provisions are unacceptable, as is their micromanaging of any issue best left handled by our local government. Personally, I’m fine with the City Council taking out the provision and letting the chips fall where they may. Others may not be. But we clearly need to take a stand on this issue or you can expect more of these mandates in the future.

Stormwater regulations are a prudent thing. We all want clean water for a myriad of reasons. I don’t take issue with them because I don’t love the environment. Instead, I would suggest that state guidelines are much more effective, and allowing localities, either at the county or city level, to make decisions like these… decisions by people who know the area, the topography, and the vast number of local challenges we face. 

Our country was founded on the concepts of localism and government by, of, and for the people. When it comes to the subject of stormwater… maybe it’s time to get back to those principles.