Sunday, May 18, 2014

An Orwellian Time - Where Nothing Is What It Seems to Be

Michael Bobbink has been a Hearing Examiner since 1984. His decisions have shaped some of the most destructive land use practices in Whatcom County.

Any person who uses Sam Crawford as a reference for land use services gives me pause. (November 7, 2011 letter from Bobbink to Whatcom County)

In 1997, Bobbink recommended approval of the Cherry Point development, ruling that the "overall value and functions of wetlands...should increase if the applicant fully complies with the mitigation plan and if it is successful." He also ruled that the final EIS "has concluded that there is not a probability of a significant adverse environmental impact from this proposal."

In 1998, he allowed a 700,000-gallon sewage detention tank in Lake Whatcom that permitted the "construction of  600 new homes", and allowed a second sewer line along Lake Louise Road.  His reasoning: "Denial of utility services to existing property owners without compensation is not the appropriate way to protect Lake Whatcom." (Whatcom Watch, "A Roller Coaster Ride: The Proposed Second Sudden Valley Deer Line", by S.A. Hewitt, March 2000)

Mr. Bobbink's rulings also enabled hundreds, if not at least a thousand more development rights to be created in our agricultural lands. From 1976 until 2001, Whatcom County allowed the creation of parcels less than 40 acres in size if it facilitated more intensive agriculture. Mr. Bobbink ruled that "the exemption should allow, but not require, more intensive farming on both parcels." ("Breaking Up the Farm, Zoning rules erode farm protections. If developed, ag land may double in population", Bellingham Herald, Ericka Pizzillo, April 23, 2000.)

Many of you have followed the story of the closed doors permitting of the illegal clearing at Cherry Point, site of the proposed coal terminal.  I took on Big Coal -- and lost, thanks to bizarre rulings of Mr. Bobbink.

The coal developers made a motion to dismiss my appeal on several grounds. The term is called "Summary Judgment", yet the Whatcom County Hearing Examiner has no rules for how to handle such motions. Perhaps that is why there have never been any prior motions for Summary Judgment in Whatcom County!

There are just four reasons where the Hearing Examiner could dismiss an application without a hearing. You'd think that the Hearing Examiner would find one of those reasons if he was to dismiss the appeal? Not Mr. Bobbink.

He chose to dismiss the case without an open record hearing. Adding insult to injury, he made me pay for the hearing that the coal developers requested. His reasoning in his decision reflect the past 30 years of bad land use decisions here in Whatcom County.

I filed a request for reconsideration, something that is allowed under the rules when within three days of receiving a decision. The request cited several errors and omissions in Bobbink's decision, including a procedural mistake of the Hearing Examiner.

If you are the Whatcom County Hearing Examiner, you are required to render a decision within 10 days following conclusion of all testimony and hearings. (Unless the rules say otherwise, a day is a day, and not a "working day".WCC 20.92.430 requires 10 days for a decision.) Apparently, this simple instruction doesn't work for Michael Bobbink. Mr. Bobbink thinks the "shorter timeframe makes no sense." After all, the "Code...does not indicate what relief there is for failures of Planning or the Hearing Examiner to meet imposed time deadlines."

He denied my request for reconsideration. I guess those pesky deadlines only pertain to others.

Now I must decide by this Wednesday May 21st -- ten working days from when the decision was made, whether to appeal the decision to the Whatcom County Council. It will cost $300 plus the cost of a transcript. These appeals cost more than what the coal developers had to pay for the permit to destroy 9.1 acres of forest, impact nearly 4 acres of wetlands and damage an archaeological site.

The land disturbance violation should have been raised in 2011 because it could have prevailed through the courts. It really is a good case, and still is a good case due to the bungling of decisions by Whatcom County.

Mr. Bobbink's contract is up for renewal each year, with a full review slated for 2015. It is time that we look for others to perform this service. Enough damage has been done to our environment, and with the Gateway Pacific Terminal project set to be heard by this same person - oh my.

As for my six month battle, I'm curious what others think. Continue the fight? Or, maybe wait and file on Day 11 "because the shorter timeframe makes no sense?"  After all, what's good for the goose....

P.S. If you think I should carry on the fight, I need some financial support.  Send me a PM (last name or on Facebook to let me know you might contribute $25 - $50 to carry this battle forward.

Sunday, April 27, 2014

Still Outlaws

The Bellingham Herald reported today that County Council Chair Carl Weimer said "Happy Earth Day."  

This is a stunning development.  After all, Council Chair Weimer's remark stands in stark contrast to the official Whatcom County moniker for Earth Day:  as [County Executive] Louws called it, National Jellybean Day.” 

Therefore, Q.E.D., the environmentalists are winning.  Everyone, please go back to sleep until the next election.

I wish that I could join the happy siesta.  Truly.  The past four years of County Council mismanagement have worn us all down.  

But the thing is, there's this pending case addressing Whatcom County’s failure to plan for the protection of its water resources in rural areas.  Yes, that case, the one where the Growth Management Hearings Board found that the County had not protected water quality or quantity.

The case that the County lost, although you wouldn’t know it from the folks vigorously asserting the sanctity of the County’s right to continue not to plan.  

These saber-rattlers neglected to address one salient fact:  not only did Whatcom County lose, but it has a current legal obligation to comply with the GMA.    

On April 15, 2014, the Growth Management Hearings Board found that the County remains in noncompliance with the Growth Management Act, because it still has not implemented the planning needed to protect its water resources.  The Board’s “Second Order on Noncompliance” states: 
"Whatcom County is in continuing non-compliance with the Growth Management Act as found in the Board’s June 7, 2013, FDO. This matter is remanded to the County to take action to comply with the Growth Management Act. . .”
The Board requires the County to file a status report in early October 2014, with compliance due on November 21, 2014.

How does the County plan to comply?  Nobody talked about that in the Herald article.

Republican Party leader and Tea Party activist Charlie Crabtree talked about how Whatcom County ought to fight in court because that's what "the party and conservatives" across the state want the County to do.  If the County Council believes that it is under an obligation to uphold the statewide conservative agenda, then so be it  -- and does that mean that the County will continue to thumb its nose at the Growth Management Hearings Board?

Council member Ken Mann asserted that my clients and Futurewise would need to come up with a "profound settlement proposal"  to avoid court.  No word on the County's plans to "take action to comply" with Board's order on water quantity.

Whatcom County is in charge of planning. The County has staff.  The County is the entity that is required “to take action.”

Whatcom County is [still] the outlaw.

I hope that optimism over the new County Council will be justified by words and actions demonstrating that the Council takes its own obligations seriously.   

The responsibility for “profound” proposals to address the County’s ongoing noncompliance with state law ought to be a two-way street.

Saturday, April 26, 2014

“Whatcom County Has Plenty of Water,” And Other Happy Talk That Really Isn’t Helpful

This post is a delayed reaction to a panel discussion of Whatcom County water issues that took place last Saturday (this link will take you to Terry Wechsler’s summary of the forum on Northwest Citizen).

One phrase that was repeated umpty-times was “Whatcom County has plenty of water.”  Well, OK.

Let’s think about some other commodities that are plentiful in the County: 

Whatcom County has plenty of money:  Meander through Semiahmoo or Edgemoor, check out the coastal properties off of Chuckanut Drive, and it becomes readily apparent that there is plenty of money in Whatcom County.  I’m betting that we have so much money in Whatcom County that some of it even is sent abroad, to be hidden offshore. 

Whatcom County has plenty of food:  I was in Haggen’s just last night, and the shelves were downright groaning with food.  Farmers grow a lot of food here – milk, berries, all sorts of good things.  Plenty of food.  We even export some of it.  We have so much food that some of it gets thrown away.
And yet, people are poor.  And yet, people go hungry. 

The point is, of course, that overall quantity is one measure of plenty, but it isn’t the most useful measure when distribution is the problem.  And distribution is the problem with water.
Unless and until those winter flood waters voluntarily decide to route themselves into giant natural cisterns, and then accommodatingly flow onto farm fields in August, the fact that we have “plenty of water” (as an annual figure) doesn’t really solve our problem.

OH NO, have I started a meme?  Will people now claim that flood waters will route themselves into previously-unknown natural cisterns, and then will disperse themselves onto farm fields?

My concern is not as far-fetched as you might think.  The statement that got the biggest rise out of the audience last week was farmer Marty Maberry’s announcement that a previously-unknown deep aquifer, “bigger than the Amazon and the Columbia Rivers put together,” had been discovered under Seattle.

Members of the audience (1) immediately thought that he meant “under Whatcom County” (he hadn’t said that, but we all tend to hear what we want to hear), and (2) asked how we can get one of our own.  Marty suggested that we should be putting our money into drilling, so we can discover more previously-unknown deep aquifers.

Well, heck.  Who can blame Marty.  We all want a silver bullet.  And dealing with water issues in this county does have all the fun and sense of achievement of trying to run through a vat of drying cement.   I think that everybody involved is frustrated and would like to be rescued by a giant deep aquifer.

The only problem is that there is no vast, previously-unknown deep aquifer under Seattle.  There is a vast underwater canyon that belches salty, nutrient-laden water into Puget Sound, as my comments on the Northwest Citizen argument explain (with links).  UW researchers recently found that this canyon is bigger than the Amazon and Columbia Rivers, combined.   But it’s no freshwater source.

It’s a bummer.  It throws us back into the vat of drying cement, where none of us wants to be.  But you know what -- we’ve made a big part of that vat ourselves by our heedlessness in ignoring water issues.  The natural world is complex and only getting more so with climate change.  And that’s the reality that we face.

Therefore, I would suggest that it doesn’t help to keep repeating “we have plenty of water” without some clarification.

Who are “we”? Do We the Fishes count?

How do we gauge “plenty”?  Do time-and-place matter?

The state of Washington answered both of those questions in 1985, when it established instream flows (for We the Fishes) and closed watersheds during dry periods.  Yes, fish are part of “we.”  No, “plenty” doesn’t mean that we have enough water when and where we need it.

Almost thirty years later, it’s not like these concerns have gone away.  “Plenty” is as plenty does, and our “plenty” has some strings attached.

So please, no more empty happy talk.  Let’s have some action.


Why is Grumpy Blogger so grumpy?  See the response to Progress Hornsby, below.  

As promised, here's the factual record of Whatcom County's water resource management, in the words of the State Growth Management Hearings Board.  

But hey, this is nothing that Happy Talk can't handle. If we all believe -- REALLY BELIEVE -- that we have the best of all possible County governments. . . . 

if we all snap our fingers and say "Yes, Tink, I believe!". . . . (or, alternatively, "Whatever is, is right," with the theme from Candide running through our minds),

then all these problems just go away. 

"The record demonstrates the following in the County’s Rural Area regarding surface and groundwater resources:

Saturday, April 12, 2014

Taking on Big Coal

The first battle against Big Coal's illegal clearing of 9.1 acres of forest that impacted 3.92 acres of wetlands and damaged a known archaeological site is set for hearing April 23rd at 1:35 p.m. at the County Courthouse Council Chambers.

It is David vs. Goliath "battling" (with words) before the Whatcom County Hearing Examiner.

The illegal clearing (in pictures) is shown below.
Carl Weimer took this picture of the clearing in July 2011 while walking his dog.

Here is a picture taken in April 2014 from approximately the same location as Carl's 2011 photo. Pacific International Terminals, Inc. has planted new trees to address their forest practice violation, but their planting scheme maintains a clear path to continue their geotechnical investigations for the coal port. 
The stakes in this appeal could be huge. If successful, the County would be required to enact a six-year development moratorium on the property proposed for the coal port, and suspend review of the application until the end of six years. The moratorium could be lifted only after a public hearing that demonstrates the violations are cured.

Big coal doesn't like the fact that their project might get suspended, or that their violations would be subject to public input. So, Pacific International Terminal's, Inc. have "lawyered" up against this citizen appeal. Their first attack on my appeal is to file a motion to dismiss, arguing that a citizen that lives in Bellingham does not have "standing" to file the appeal. 

The lawyers attempt to limit standing has never been raised in an appeal before the Whatcom County Hearing Examiner. In fact, Whatcom County's system for appealing zoning and critical area decisions only require you to be a "person". The coal port developers attempt at limiting appeals is just another way that they wish to exert undue influence on their illegal clearing.

If you wish to voice your opinion on Pacific International Terminal's attempt to dismiss this appeal, attend the hearing or send your comments. The Hearing Examiner required a legal notice to be published that said the hearing is an "open record" and allows you to "appear at hearing."  You can also mail your comments to the Hearing Examiner at 311 Grand Avenue, Bellingham, WA 98225 before April 23rd.

For those of you that enjoy reading legal arguments, here are the two briefs I submitted:

Tuesday, April 1, 2014

Water Wars Forever

As our loyal readers know, Whatcom County's rural and agricultural areas can accommodate enough new houses to take care of the County's population growth for the next 25 years.  Not one new house or apartment needs to be built in a city -- the County's zoning allows all the new houses anybody could need to be built in rural and ag land.  

And you know that the rural and ag areas don't have water to spare.   Most of the basins in Whatcom County are closed to further withdrawals, but that hasn't affected the County's decision to allow all those new houses to be built, tapping groundwater that will not be available to farmers or to fish.

And you know that the Growth Management Hearings Board has found that the County needs to protect water quality and quantity.  As a result, the County is under a legal compliance obligation; it is supposed to be working towards compliance with the Board's order.  That's the law. 

And you know that the County has the option of improving its water quality and quantity planning to comply with the Board's order. 

Instead, the County Council just voted to spend $40,000 more taxpayer-provided dollars to keep fighting in court.  

And today, in a compliance hearing before the Growth Management Hearings Board (this is a public hearing, so I'm not telling any tales), the County's attorney stated that the "County does not intend to take any further legislative action without guidance by the court."

So much for following the law!

So much for protecting water quality and quantity!

So much for all of those campaign promises NOT to keep funding Seattle attorneys to fight against GMA compliance!  I hope that We the Taxpayers are prepared for many more requests for many more tens and hundreds of thousands of dollars, because this Council apparently does not see a need to end the old Council's GMA battles any time soon.

I'm very disappointed as a citizen.  But as an advocate -- well, nobody ever promised us a rose garden, so on we go. 

Sunday, March 16, 2014

Whatcom County Leadership Needed to Protect Water Resources and Agricultural Land

The League of Women Voters’ March 15th session on water resources focused on “solutions.”

After the four panel members (Jeremy Freimund, Lumm Water Resources Manager; Hanry Bierlink, representing the Whatcom Agricultural District; George Boggs, from Whatcom Conservation District; and Ann Wessel, from the Department of Ecology) finished their remarks,  the League moderator noted that the speakers had used a whole host of words --  “litigate,” “ cooperate,” “be optimistic,” “be holistic” – and so forth.

As she ran through the string of words, I noticed that one word was missing:  “plan.”  Whatcom County has the obligation to plan to protect water resources.  Why didn’t anybody talk about that?

That absence came out in the subsequent conversation.  Henry Bierlink noted that water “is a land use issue, it’s an economic development issue, and everything else.”

Speaking of planning (or the lack thereof), the next question asked how much farm acreage the County is losing to development.  Henry responded that we lost a lot over the past 20 years, but now it’s plateaued and we have the 100,000 acres that the County Council has committed to protect.

I was standing in the back of the room, shaking my head vigorously – not because I doubt Henry’s word that more than 100,000 acres are currently being farmed in Whatcom County, but because the County has NOT protected 100,000 acres of agricultural land.  Only 88,000 acres are zoned for agriculture (don’t take my word for it – click here and see page 3).

On top of that, even the 88,000 acres that are zoned for agriculture are not permanently protected for agricultural use, as George Boggs emphasized.  The issue, he said is “what we can lose” – and this County has 4,000 development rights in prime agricultural land. 

Why does that matter?  As these lots are developed, they will withdraw some water, and in some places, that may be a problem.  But the bigger problem is the potential for incompatibility.

Unlike anywhere else that I know of, Whatcom County’s zoning allows residential buildings to be built right up to a farmer’s property line.  In fact, under some circumstances, a setback applies to farm buildings, which are constrained in their location in order to protect residential uses.  This is a formula for conflict.

As restrictions tighten on the use of pesticides and other chemicals (don’t take my word for it, click here),   the ever-increasing number of residential buildings in Ag areas will increasingly constrain farming.

Whatcom County has a chance to address this issue in its upcoming Comprehensive Plan update.  It could revise its zoning code and provide some protection to Ag uses.  As George Boggs noted, the issue of residential development in agricultural land is an issue of great urgency. And yet the County Council recently voted NOT to docket a measure that would put the County on the road to protecting the additional ag land that everybody agrees that we need. 

Is Whatcom County in the business of planning?  Reacting?  Merely defending the status quo? 

That leads us to the most profound statement on leadership of the session. Jeremy Freimund, the Lummi Nation’s water resource manager, described the “Lessons Learned” from his years of being in the thick of water resource litigation.  The main “lesson learned,” he said, is that politicians want to be able to say “”the judge made me do it.”

True leadership, as he pointed out, would be to stand up and admit that concessions are needed to get to a negotiated agreement.

I think that we elected a new County Council in hopes that there would be a welcome return to leadership. Perhaps this hope only extended as far as the review of the Gateway Pacific coal terminal, and perhaps we are all too jaded or too indifferent even to dream that Whatcom County will ever again engage in the kind of leadership needed to address our other tough problems.

Water problems.  Council Chair Carl Weimer recently proposed, and the Council recently adopted, a Water Action Plan.  This could and should be part of the solution.  Will it have any teeth?  Will the Council have the political will to buck the status quo? 

The protection of agricultural lands.  Will the County do what it takes?  Ken Mann has proposed a Transfer of Development Rights program to remove development rights from agricultural land.  Does the Council have the technical support, the money, and the backbone to make it work?  And if not, what is Plan B?  Is planning any part of Plan B?

As George Boggs put it, “if you want change, you need to clamor.”