Saturday, June 8, 2013

Hearings Board to Whatcom County: You -- Yes, You -- Have the Responsibility to Take Care of Your Own Water Resources

Big bubble:  all the freshwater on earth, including groundwater.  Little bubble:  lakes and rivers. . 
On Friday, the Growth Management Hearings Board issued a "Final Decision and Order" that, again, found Whatcom County out of compliance with the Growth Management Act. 

The Board found that the County's rural planning has not protected water quality or water quantity.

Click here to read the decision.  Skip to page 22 to get to the "deciding" part.

The Board's decision is thorough and well grounded in evidence.  All of its conclusions are supported by citations to and quotes from objective sources.  

A few excerpts from the decision: 

"Ecology provides technical assistance and model regulations, but County land use plans and  regulations are necessary to assure protection of rural character, including water resource protection."

"The Board also read reports on contaminated groundwater and drinking  water; increase in shellfish contamination; an increase in exempt wells for single residential uses without required proof that the groundwater withdrawal will not impact stream flows; governing regulations from the last century (1985 state administrative regulations and a 1999 County Water Resource Plan); and the County's own resolution and Comprehensive Plan, stating its water resources are unknown and future water uses are uncertain.

"The Board finds the link between land development and water resources is well-established." 

"[C]urrent science-based studies conclude that most water resource degradation in the Puget Sound region and Whatcom County in particular can be attributed to land use and land development practices."  

"The proliferation of evidence in the record of continued water quality degradation resulting from land use and development activities underscores the need for protective measures for water resources."

"The Board has previously held that exemption for private wells does not exempt the County from complying with the GMA's mandate to protect critical aquifers.  Similarly, the exemption does not exempt Whatcom County from complying with the GMA rural element requirements."

Along the way, the Board discusses a few of our local peculiarities, including "self-inspection" of septic tanks and the County's failure to limit impervious surfaces in rural areas.  

It concludes:

"In sum, the County is left without Rural Element measures to protect rural character by ensuring land use and development patterns are consistent with protection of surface water and groundwater resources throughout its Rural Area.."



  1. Congrats! This ruling is a big deal that will take some time to be fully appreciated.

  2. A huge thanks to all those who took the time, effort & $$ to file this challenge. Thanks too to all those whose huge efforts on WRIA went so unappreciated for so long -- their work *did* pay off, even if its taken years.

    Elected County scofflaws (it's not everyone, thank goodness) should be grateful that, once again, the GMHB is giving them a chance to mend their illegal ways. However, after attending some of the discussion & 'let's ignore the law again, or at least see if we can't squeeze it a bit more' decisions in Council chambers last week, I seriously doubt those on the council -- many up for re-election -- who don't believe in the rule of law will do what's needed to come into compliance on these water issues.

  3. Thanks, everybody. I put in hundreds of hours of pro bono (donated) time to get to this result, and I'm very pleased that the Hearings Board decision is so clear, rational, and well-founded in fact.

    Why bother with this issue? There were two turning poins for me.

    One was the County Cuncil's outright refusal to limit the amount of paved area ("impervious surfaces") on Rural residential lots. Every city in the County limits impervious surfaces, in order to protect water quality and quantity, but the County just couldn't bring itself to limit development capacity in its Rural area. And make no mistake about it, that's what the Council's decision was all about: development capacity. Making sure that no property developer in the Rural area of the County would be deprived of one cent of profit. No matter how high the costs to the water that we need (and share with others, including the tribes, our grandchildren, and salmon).

    The second turning point was the map of closed watersheds contained in the WRIA 1 "State of the Watershed" report (2010). I looked at that map and said, Almost the entire freaking County is closed to further water withdrawals. Any responsible decisionmaker would feel an obligation to address this situation.

    That's the key. Responsible decisionmakers.

    I just posted this comment on my Facebook page, in reponse to an observation that the County does nothing but fight against its obligation to plan for the future:

    County government needs to hear that its constituents want the County to start doing some good planning. The County knows that it has a water quality and quantity problem; it was just hopeful that it could push the responsibility off to somebody else.

    Also, the County has burned through the $50,000 that it allocated to pay a Seattle law firm to fight against the Growth Management Act. Should the next $50,000 be spent on efforts to solve County water problems? Or should we, the County taxpayers (which includes everybody who lives in the City of Bellingham) spend more, and more, and more money on legal fees to continue the County Council's crusade against the Growth Management Hearings Board?

    The bottom line is this: It's really up to the citizens of the County. I do what I can, with the support of my clients. But we can't do it alone. Everybody has to be heard if you want the County to do the right thing.

  4. Congratulations Jean, David and All

    The Hearing in April was at 311 Grand Avenue, just up the elevator and down the hall from our County Council Offices.

    Not one Councilmember showed up. Too bad. They could have learned something. The arguments from both sides were well-researched, instructive and compelling. Particularly yours, as evidenced by the Hearings Board decision.

    If our intransigent Councilmembers are so hell-bent in pursuing their expensive and quixotic attempts to do an end run around the law, they should at least have had the guts to show up at this Hearing.

    1. Thanks, John.

      I don't think that the Council's attorneys told them about the hearing. Carl Weimer did come to watch when he found out that the argument was going on.

  5. Thank you, Jean and the plaintiffs!
    Abe Jacobson

  6. You're right, Jean, Carl was in attendance towards the end.

    That said, it is up to Councilmembers to find out about the scheduling of a Hearing that is made possible by their reckless funding of this GMHB challenge.

    If Chet Dow and Greg Brown can take time from their schedules to sit through the entire hearing (they were sitting next to me) then Councilmembers should find time to attend also.
    Wendy Harris, Shane Roth and Laura Leigh Brakke also attended. Apologies to anyone I missed.

  7. Once again, Jean, great job! I'm so pleased. If your followers are interested in some more perspective on the issue you've so elegantly framed for these dead heads in Whatcom, here's something they might appreciate.

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