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Wednesday, February 4, 2015

Of Salmon and Bagpipes

I’ve lived in Whatcom County since 1996, and it has always seemed a bit like Brigadoon to me. The land that time forgot. A county-dwelling friend claims that this aura is related to the County's staunchly conservative electorate: “These are the folks who ran as far away from civilization as they could, until the water and the border stopped them from going any further.”

Maybe that’s why the idea of “planning” meets so much resistance in our county. “Planning” means that change is going to happen, that the future may be different from the past, and that change might make us do things differently.

No change will be bigger than climate change. The scientific evidence of climate change’s effects makes it clear that our future is going to be quite different from our past. And when I say “our future,” I mean our future. Right here in Whatcom County.

Just yesterday, for example, a peer-reviewed article confirmed what we already know: that climate change is giving salmon a tough time. As NOAA Fisheries states
Many salmon rivers around Puget Sound have experienced increasing fluctuations in flow over the past 60 years, just as climate change projections predict - and that's unfortunate news for threatened Chinook salmon, according to a new analysis of salmon survival and river flow.
More pronounced fluctuations in flow can scour away salmon eggs and exhaust young fish, especially when lower flows force adult fish to lay eggs in more exposed areas in the center of the channel.
Flow fluctuates so wildly because of bigger storms, more droughts, and more water falling as rain instead of snow. This study makes it clear that these fluctuations are already happening – this is not just something that may happen in the future.

Oh well, you may be thinking, that’s OK, we’ll just get our salmon from British Columbia. Except that a recent Canadian study shows that warming waters in B.C. rivers will give chinook salmon heart attacks. Literally.

So maybe we shouldn’t “plan” to outsource our salmon dinners
.
These studies, and many more like them, show that the future will not be like the past. In fact, “the future” is now. It’s already on the job. What can we do about it?

Whatcom County is in the middle of its most important planning exercise: the update of its 2016 Comprehensive Plan. The Comprehensive Plan is supposed to identify and protect frequently flooded areas. It’s supposed to protect surface and groundwater resources. It’s supposed to protect fish and wildlife habitat. Climate change will affect all of these “protected” resources. We could -- in fact, we should -- plan to avoid and ameliorate the effects of climate change.

But I’ve been watching County planning for a while now, and I have a prediction based on past performance. I predict that Whatcom County will continue to plan for the past, because that’s where its most vocal residents are the most comfortable.

The County will continue to promote land conversion that way it’s always been done in Whatcom County-- without worrying about water supply, or how much pavement covers watersheds, or whether farm land is protected, or even whether impact fees are in place that could help to pay for some of the impacts of land conversion. The County will continue to give the very highest priority to making sure that tens of thousands of new houses can be built on farm land and in rural areas, even when the new houses’ new wells deprive salmon of the water that they need.

In short, Whatcom County will continue to plan for 1950, not for 2050.

Now, some readers are shaking their heads, saying “I live in the most progressive community in the universe! We love the environment! What are you talking about?” And that may be right, as far as it goes. Psychologically, if not geographically.

As Gail Collins has pointed out, there’s a large and increasing difference between what she calls “crowded places” and “empty places.” "Empty places" are a state of mind, not necessarily a geography; Texas views itself as an empty place, Collins notes, despite the fact that 80% of its population lives in urban areas

In our crowded place, Bellingham, it can be easy to stay cocooned in our proto-Brooklyn hipster vibe. But the fact is, our mini-Brooklyn is located smack in the middle of mini-Texas, when it comes to voting patterns and cultural affiliations.

Speaking of Texas – we have a lot of folks in Whatcom County who would find Texas Senator Ted Cruz’s favorite climate joke to be really funny: “It’s cold! Al Gore told me this wouldn’t happen!”

Best available science recognizes that climate change is already upon us. Whatcom County is required to use best available science when it protects critical areas.

But will it?

Or is that the sound of laughter over Al Gore jokes that I hear, almost muffling the faint strain of a bagpipe, as Brigadoon fades back into the past?

Sunday, December 28, 2014

Water Update

Rarely-seen inhabitants of the Nooksack River call the alarm.
In 1985, the Department of Ecology adopted an instream flow rule for the Nooksack Basin, covering most of Whatcom County.

Why?

To protect the environment, that’s why.  But don’t take my word for it.  Here’s what the rule says about itself, in its own words:

"The purpose of this Chapter is to retain perennial rivers, streams, and lakes in the Nooksack water resource inventory area with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality." (WAC 173-501-020)

How are we doing?  Well, from 1986 to 2009, the Nooksack River failed to meet instream flows 72 percent of the time during the July-September flow period.  That means that too much water was pumped out of streams, and drawn from the groundwater that feeds into streams, 72% of the time during the dry period.

100% - 72% = 28%.  A grade of 28% is an F.

We’re flunking, big time.  Why are we OK with that?

One explanation comes from opinion-leaders in Whatcom County – the development industry, the Tea Party – who say that the problem isn’t that we are failing to protect the environment by depleting stream flows.  Rather, the problem is the rule.  It’s just that the Instream Resources Protection Program (the full name of the rule) provides too much protection to instream resources.   Instream flow requirements keep too much water in rivers and creeks, they assert.  Cut down instream flows!  The salmon are drowning! 

So they’ve been pressuring the Department of Ecology to adopt a new instream flow rule which, they believe, would allow more water to be pumped out of rivers and creeks, reducing the amount of water left in streams.

On December 3, Ecology presented the WRIA 1 “Planning Unit,” including these self-same opinion leaders (the development industry and the Tea Party), with its assessment of what a new instream flow rule for Whatcom County might look like.  Power point presentations from the program are here (Christensen), here (Wessel), and here (Pacheco). 

The takeaway:  If Ecology adopted a new instream flow rule, more water would have to remain in rivers and creeks in order to meet the goals of preserving fish and wildlife. 
  • Our scientific knowledge has increased – for example, we’ve learned that fish actually like water.  Who knew!
  • The Endangered Species Act listings happened after the 1985 Rule, so we’d actually have to protect endangered salmon in WRIA 1 if we adopted a new rule.
  • Ecology would actually have to comply with state water law if it set a new rule.  All sorts of “new” cases – some of which are a quarter century old by now, but who’s counting – would require additional protections.   Ecology believes that it’s always 1985 in Whatcom County.  A new rule would bring us out of our comfortable time warp and into the harsh environmental reality of the 21st century.
In short, not only are we failing miserably to keep enough water in our rivers under the 1985 rule, but the 1985 rule wouldn’t protect fish and other resources even if anybody paid any attention to it.

What will Ecology do about this?

As an Ecology representative once said, about Lake Whatcom:  when you’ve dug yourself into a hole, the first step is to stop digging.  But Ecology is not applying that logic to instream flows.

Ecology is arguing in court that the Instream Resources Protection Program is intended to make sure that an unlimited number of new residential wells can draw water from closed watersheds, regardless of their effects on instream flows.  According to Ecology’s argument (which my clients and I think is wrong), residential wells have higher priority than any other water use, even including senior water users such as farmers.  According to Ecology, new residential wells have the legal right to take the very last drop of water from rivers and creeks that are required to be “protected” by instream flows.

I believe that Ecology’s argument stems from expediency rather than conviction.   Ecology knows that water resources are not adequately protected in Whatcom County, but it does not believe that it is equipped to do anything about it.

Look at slide 12 in the Christensen presentation of December 3rd, included in the links above.  Ecology (1) is focusing on Spokane, (2) believes that other counties, some of which have no instream flow rules at all, are even worse off than Whatcom, (3) does not want to have to deal with complying with state water law as it has developed since 1985, and (4) just plain doesn’t have the budget to deal with us.

So Ecology has made it pretty clear – as clear as a bureaucracy can be, on the record – that Whatcom County’s problems are its own.  We have a 1985 rule, and that’s all we get from the state.

“We,” in this context, means Whatcom County.  What is Whatcom County doing to protect water resources?

Whatcom County, along with its allies in the building industry (REALTORS®, Building Industry Association, and Farm Bureau), are fighting in court to avoid protecting instream flows, supporting Ecology’s claim that residential wells have priority over instream flows (and other senior water users) down to the last drop.

The County backed itself into a corner on this issue, of course, by planning for a whole lot of new development outside of cities.  In fact, Whatcom County has planned to allow the equivalent of five new Blaines to be built on agricultural and rural land.  This new development will, for the most part, rely on new wells for water.

The County has no idea whether and where water is available for new development.  It doesn’t want to connect new development to the availability of water, as the Growth Management Act requires.  Fish don’t vote, after all, so there won’t be any repercussions if they are left high and dry.

My clients and I, and Futurewise, are opposing the County’s interpretation of the Nooksack Instream Resources Protection Program.  We don’t think that that the Instream Resources Protection Program says that new residential wells are “exempt” from instream flows.  Here’s a presentation that I gave at a recent legal seminar, with my take on the case.

On December 24th, we responded to two briefs filed by Whatcom County’s “friends in court,” or “amici curiae.” For those who want to dive into the arguments, here’s the brief that the REALTORS®, Building Industry Association, and Farm Bureau filed to support the County, and here’s our response. 

Here’s the brief that the Washington State Association of Counties filed, and here’s our response.

The Court of Appeals in Seattle will hear arguments on the water case on January 15th.  If we win, perhaps the County and Ecology might start putting their heads together to figure out how to make sure that land development connects to water quality and quantity.

Win or lose, some water issues are starting to percolate.  So to speak.  County Council member Carl Weimer’s Water Action Initiative may have some results.  Here’s a discussion on Carl’s blog.

Farmers are moving forward to get water.  I assume that a January 8th session on a potential “Whatcom water exchange” is related to this effort (here’s a link).  Bill Clarke, the lead author of the brief filed by the REALTORS®, Building Industry Association, and Farm Bureau, will be speaking, as will a lawyer from Whatcom County’s Seattle law firm, Van Ness Feldman.

It will be interesting to hear what water is available for exchange.  The City of Bellingham and PUD 1 have substantial water rights, making them the logical targets.  Will farmers really tax themselves to pay for the infrastructure that they need to draw water out of the Nooksack?  Or will we all wind up footing the bill?

My prediction for 2015 is that fish and wildlife will continue to foot the bill.  They’re nobody’s constituents.

Next, our children and grandchildren will pay the price.   They’re not voters either.

That’s the remorseless outcome of short-term politics applied to long-term goals and needs.  As our bridges fall beneath us, we shrug and oppose new taxes.  As our water dries up, we shrug and bury our heads in the sand.

We will reap what we sow.

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 @aol.com) 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: