County Council Update: Representing Your Interests?

The Whatcom County Council had a big day yesterday.  Or so I hear, as reports from shell-shocked survivors trickle in. 

The Council voted to give its Seattle law firm $40,000 more for the Council's crusade against the Growth Management Act.  As the County cuts its budget in other areas, there's always enough money to pay Seattle lawyers up to $375 per hour to defend the County's decisions to flout the law. 

Rather than deciding to buckle down and plan to protect its water resources, the County voted to appeal the Growth Management Hearings Board's recent decision, which found that the County has not adequately protected water quality and quantity.  And that will be another few hundreds of thousands of dollars.

Speaking of not defending water quality and quanitity, the Council decided not to adopt an ordinance that would give some indication that the County cared, even a little bit, about Lake Whatcom water quality.  Rather than saying that new development should not increase Lake Whatcom pollution, the Council sent the ordinance back to committee.

Why?  Because it was shocked, SHOCKED to hear that the Department of Ecology is serious about wanting phosphorus pollution to be reduced by 87%.  This is NEWS requiring more SITTING IN COMMITTEE! 

Never mind the fact that the County promised Ecology, two years ago, that it would adopt regulations resulting in zero increase in phosphorus pollution in the Lake from new development. 

And last but not least, the County voted to flagrantly violate state law by refusing to come into compliance with another Growth Management Hearings Board decision.  I'm not even sure what to say about this one, because I've never worked in a jursidiction that had the gall to thumb its nose -- openly -- at a tribunal.

To make a complicated story short, the County has taken a couple of shots at coming up with a valid plan for its "Rural" area.  After its second shot, the Growth Management Hearings Board found that the County still wasn't in compliance with state law in a number of areas.

The County appealed some of these decision in court.  It didn't appeal others.  That means that the time for going to court to say "The Hearings Board is wrong" is over.

The County now has to show the Board what it did to comply with state law.

All the County can say on several issues is:  We decided not to comply.

So how will your tax dollars -- the $375 per hour that you and I are paying the County's lawyers -- be used to defend the County's decision to go outlaw?

First, the County will go before the Hearings Board.  It will have to argue that "We complied with your order by defying your order."  The Hearings Board could well decide that outright defiance is not compliance.

Then the Seattle lawyers can appeal that decision to court.  Will they be able to argue that the Hearings Board is illegitimate, that my clients and I and Futurewise are bad, bad, bad, bad, awful people (disparaging us is a huge part of the County's decision-making process), and that the Board made a wrong decision?

No.

All that they'll be able to argue is that the Hearings Board was wrong to decide that defiance is not the same as compliance.

Is that how you want your tax dollars used? 

If so, please do ignore County politics.  If not, I hope that people start paying attention.

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.."






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Water Supply Symposum: Planning for Water

I was on an interesting panel at the Water Supply Symposium today.  There were nine of us, representing different interests.  After the first eight of us had spoken, in civil and probably fairly boring terms, Randy Kinley Jr., from Lummi Nation, said what needed to be said. To paraphrase:

Everybody knows what needs to be done.  It doesn’t get done because of politics. 

Well, yeah.  There it is. 

County Council candidate Rud Browne asked for “thinking outside of the box” on the issue of water rights and water supply.  Somebody suggested to me after the symposium that it would be “thinking outside the box” if our County Council decided to comply with the Growth Management Act.   

And that is also something that needs to be said:   

In our county, a decision to comply with state law would be thinking well outside the current box.

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My interest was “land use.”  Here’s what I said:

There’s a definition of “planning” in BusinessDictionary.com that says that planning is:

A basic management function involving formulation of one or more detailed plans to achieve optimum balance of needs or demands with the available resources.

The planning process (1) identifies the goals or objectives to be achieved,

(2) formulates strategies to achieve them,

(3) arranges or creates the means required, and

(4) implements, directs, and monitors all steps in their proper sequence.

We expect businesses to plan.  We expect families to plan, to make sure that the family budget balances needs or demands with available resources.  And planning is what Whatcom County should do.

Yes, we need to know more, but we actually have quite a bit of information about water availability.  We know that:

Most of Whatcom County’s surface waters are closed to further water withdrawal, either all year or in the critical summer months.  . 

Most farmers don’t have legal water rights.

There isn’t enough water for salmon in some of our streams. 

The Sumas aquifer has one of the worst levels of nitrate contamination in the state, with 70% of wells violating state water quality. 

Water supply is a problem that requires planning – a rational effort to achieve a balance of needs or demands with the available resources. 

But for some reason, the idea that Whatcom County should plan to achieve an optimum use of our most precious resource, water, has been viewed as way too radical.  Or a low priority.  Or something.

There’s no question that the County has the authority it needs to plan for the rational use of our water supply.  In fact, Goals 9 and 10 of the Growth Management Act  require the County to protect water quality, the availability of water, and fish and wildlife habitat. 

The County is required to plan for rural development that protects surface water, protects groundwater resources, and is compatible with fish habitat.  

As the Washington Supreme Court said recently, in its 2011 decision in Kittitas County v. Eastern Wash. Growth Mgmt. Hearings Bd.,

Several relevant statutes indicate that the County must regulate to some extent to assure that land use is not inconsistent with available water resources.  The GMA directs that the rural and land use elements of a county’s plan include measures that protect groundwater resources.

What could the County do? 

When it’s deciding where to encourage or discourage growth, it could make water availability a key factor.  It could prevent further pollution of groundwater and surface water, because poor water quality in some areas translates into a lack of water supply.

I am representing local citizens who, along with Futurewise, are asking the Growth Management Hearings Board to find that Whatcom County has an obligation to make sure that its rural land use planning takes water supply into account.  This obligation is not only to address the exempt well issue, but also to consider water supply when planning for growth.

The County has said that it has no obligation to do anything that the Department of Ecology doesn’t force it to do.  A decision should be out next month.

But whether or not the County is required to protect water supply through planning, it certainly has the ability to do so.

Why does this matter?  Because we have a limited number of tools at our disposal, and because the stakes are so high. 

The tools that we have are state water law, and as previous speakers said, state water law is not enforced, and it’s not adequate to the task.

The tribes have options and rights, which are theirs to talk about;

And we have the County’s ability to plan for the optimal balance of needs. 

Let me leave you with another quote.

While none of us who live in Washington’s beautiful “fourth corner” are pleased with the prospect of spending substantial amounts of money on water resource issues, all of us have an important stake in the outcome of this work. If we fail to initiate and see these important projects through to successful completion, we will pay a much heavier price in the future. Without available and viable water resources, the beauty, strength and vitality that make Whatcom County a desirable place to live, raise our families and pursue our dreams will wither away.

This is nobody’s campaign speech.  This is from the introduction to Whatcom County’s current Comprehensive Water Resources Plan, signed by County Executive Peter Kremen in 1999.  Yes, Whatcom County’s current plan is now a teenager – 14 years old.

What were our ambitions at the turn of the millennium, when we adopted our current plan?  Let me quote just a couple of the goals of this Comprehensive Water Plan:

·        Whatcom County will have coordinated land use and habitat management that protects drinking water supplies and provides recreational opportunities while restoring and sustaining natural systems.

·        WATER SUPPLY: Whatcom County will have a locally developed watershed plan and implementation strategy that provides for long-term, reliable and sustainable water supplies by 2003.

Ten years later, in 2013, my fear is the fear of most of the people in this room.  My fear is that we’ll all be here – older, greyer, a little less spry – ten years from now. In 2023, in a county that has successfully resisted planning, we will find that it has also failed to provide for coordinated land use and habitat management.  Failed to provide for long-term, reliable, and sustainable water supplies.  A County with more farmers uncertain about their water supply, more wells that violate state water quality, and fewer salmon.

Thank you.

To Plan Or To De-Plan, That Is the Question

On Tuesday, May 21^st, Bellingham will host both a "short course" on local planning and another chapter in Whatcom County's very long history of local de-planning. 

From 6:30 to 9:30, in the City Council chambers (210 Lottie Street), the Planning Association of Washington and the Washington State Department of Commerce will present “A Short Course on Local Planning,” focusing on topics such as “The Legal Basis of Planning in Washington State,” “Comprehensive Planning and Implementation Basics,” and “Roles and Relationships in the Planning Process.”  The agenda is here.  

Across the street, the Whatcom County Council will be hosting the latest installment in its very, very long course in how not to plan.

As regular readers of this blog know, the County’s Comprehensive Plan remains out of compliance with the Growth Management Act.  The Rural Element still doesn’t comply with part of the law that was passed over 15 years ago.  In January of this year, the Growth Management Hearings Board listed some of the ways that the Plan is out of compliance.  The County has appealed some of those issues to court, but it is obliged to fix the rest.

On Tuesday night, the Council will hold a public hearing on the Planning Commission’s recommendations relating to the issues that the County didn’t appeal.  Here’s the agenda. 

Remarkably, the Planning Commission has recommended that not complying with the Hearings Board’s decision is the appropriate response for many of the remaining issues.  Here’s the Planning Commission’s recommendation. 

Perhaps the Planning Commission is concerned that We the Taxpayers haven’t paid enough to the County’s Seattle law firm yet – after all,  “only” $46,000 has been billed to the County for the first four months of the year, with the court hearing on the county’s appeal nowhere in sight yet. 

Speaking of lawyers -- in the Planning Commission’s defense, it appears that the only legal advice that it has received was from the lawyer for some property owners who are suing the Board and the County.  Yes, it’s the same lawyer who compared the Planning Commission’s responsibility to comply with the Growth Management Act with being loaded into a cattle car to Auschwitz.  (Not kidding.  For those who missed it, the exact quote is here.) 

While it is ironic that the Short Course in local planning will conflict with the County Council meeting, it does provide the public with an interesting choice:  learn how local planning should be done in the City Council chambers, or watch how it shouldn’t be done in the County Council chambers. 

Certainty About Water Supply

This blog will circle back to water supply, I promise.  But first, a confession:

I think that New York Times columnist Gail Collins is funny.

I admit this, publicly, despite the fact that many in Whatcom County view any connection with any geographic location outside of Whatcom County (especially the east coast) to be a terminal disqualification for expressing an opinion on any local issue.   Those who have been tainted by outside thinking – heck, by having breathed the air of elsewhere –should just shut up and let the folks with their great-great-grandpappy’s homestead certificates run County affairs.

Or so folks often say, during County Council meetings and especially during County elections.  Just you watch and listen over the course of the next few months.

(These are the same folks, by the way, who will be insisting that the County must plan for an enormous influx of population over the next 20 years.  Once houses have been built, profits have been realized, and those new homebuyers have moved in, they should just shut up and be ignored for several generations, apparently.)

Anyway, Gail Collins’ most recent column is an exposé of the sheer nuttiness of Mark Sanford, South Carolina’s former Tea Party governor and current candidate.  You’ll recall that ex-Governor Sanford coined the term “hiking the Appalachian trail” when he met “jetting off to South America to meet up with his mistress.”

What impressed me most about this column, though, was the first comment in the “Reader’s Picks” section.  One Bill Appledorf asked:

Isn't there anyone, in a country of more than 300 million people, who understands economics, believes in science, and wants to be part of government because s/he wants to improve the lot of everyday American citizens?

Hmmm.  A good question.

Mr. Appledorf concluded:

Problems need to be solved. Schools, roads, bridges, windmills need to be built. Sane people interested in helping others it seems to me might find this sort of thing challenging and rewarding -- not monetarily rewarding, but emotionally and personally rewarding, the feeling of having contributed something worthwhile to society.

What, I asked myself, is wrong with this Mr. Appledorf?  Isn’t he aware that voters don’t want the kind of person who believes that government exists to solve problems and help people?  American voters want people who will tear down government in order to prove that government doesn’t work!

And then I looked again.  Mr. Appledorf is not from Whatcom County.  

He’s from British Columbia. 

So close, yet it might as well be another country.  Canadians, like all other people who aren’t from here, really need to learn how to be seen (handing over cash while buying our real estate and milk) but not heard.

Still, I can’t help but think about the type of government that Mr. Appledorf envisions:  one that addresses problems.  Collective action problems.  The type of problems that individuals cannot solve on their own.

Water supply, for example.

On May 30^th-31^st, the WRIA Joint Board is sponsoring a symposium called “Water Supply:  Searching for Certainty in Uncertain Times.”  Along with a cast of thousands, I’ve been asked to participate in a panel at the end of the first day.  We have all been asked to address the following questions:

1. From your perspective, what is the uncertainty that your interest faces with today's water supply or stream flow status?

2. Why is it important to address the challenges associated with that uncertainty?

3. What do you see as a solution for certainty for water now and in the future?

And here’s my problem. For the life of me, I don’t think that there’s any “uncertainty” about water supply, from the point of view of my “interest.”

My “interest,” according to the program, is “land use.”  This is because, along with Futurewise, my clients and I recently challenged the County’s failure to even consider, much less protect, water quality and quantity when it revised the Rural Element of its comprehensive plan.  The Growth Management Hearings Board heard arguments on April 26^th, and it should issue a decision sometime in June.

Regardless of what the Hearings Board decides, though, I don’t see any uncertainty about how Whatcom County will address water supply issues in its land use planning.  It will continue to do exactly what it’s been doing over the past 13 years.

Whatcom County adopted a Water Resources Plan in 1999 and a Coordinated Water Supply Plan “update” in 2000. 

Since then?  Nothing. 

The County’s position is that it doesn’t have any obligation to plan, or adopt development regulations, to protect water supply so long as the County’s regulations aren’t in actual conflict with the Department of Ecology’s rules.  In 1985, the Department of Ecology adopted rules stating that most of the watersheds in the County are closed to surface water withdrawals during all or part of the year.

The County’s population in 1985 was somewhere between 107,000 and 128,000 (those are the 1980 and 1990 census figures).  Now the population is 205,000.  Not quite double, but somewhere between 75,000 and 100,000 people more than in 1985.  Times have changed since “Like a Virgin” and “Wake Me Up Before You Go-Go” were the top songs.

Times have changed, and not for the better, when it comes to water supply. We still have closed watersheds -- and we have thousands of people moving into those closed watersheds and digging wells there. Farm Friends has estimated that as many as ¾ of Whatcom County farmers are now farming without legal water rights.  We have an aquifer in which 70% of tested wells don’t meet state drinking water standards.  We have salmon streams that don’t have enough water in them to provide the habitat that salmon need.  And so on, and so forth. 

What could the County do?  It could plan.  It could figure out where water is available, where it isn’t, encourage development in areas where we have water and discourage development in areas where we don’t.  It could adopt rigorous regulations protecting water quality, because the County’s water supply problem in some areas is related to water pollution problems.  Of course, that would require believing in science -- including the science that says that leaking septic tanks and unlimited impervious surfaces are hard on water quality.

And it would require a view of government as a force to solve problems and help people.

What will the County do? 

It will wait for a catastrophe.

Maybe the tribes or the state will take legal action, someday, that will force the County to do something.  Maybe climate change will make the wells run dry.  Maybe salmon species will go extinct.

Someday, something drastic will happen, and County taxpayers will then be on the hook for enormous capital facilities expenditures for – who knows.  Desalination plants, pipelines and reservoirs for north county, maybe a reservoir on Mt. Baker to catch the melting glacial waters.

Doubt me?  Look at the precedent of Lake Whatcom, where the City of Bellingham is gearing up to build a multimillion dollar algae removal system.  In the meantime, the County delays action in favor of studying how to make sure that lot owners can build more houses around the lake without being burdened by pollution removal requirements.

So the only uncertainty about water supply that I see is when and how much taxpayers will pay. 

Looking on the bright side, by reading this short blog, you just saved the two days that you might otherwise spend at the symposium.

But if you still want to go for some reason, click here to see the program and to register.

For Shame, Whatcom County

I thought that nothing that Whatcom County did at this point could surprise me, but I was wrong.   Not only can the County still surprise, but it has the capacity to make me sick.

There’s no point attending County Planning Commission meetings these days, because it’s a closed club – a biweekly Tea Party convened to serve the building industry and its attorneys.  Perhaps the ingrown atmosphere is conducive to forgetting that the proceedings are taped, and that what is said in Northwest Annex doesn’t necessarily stay in Northwest Annex. 

Or maybe all of those involved believe that what follows is perfectly acceptable public discourse.

Attorney Jack Swanson appeared before the Planning Commission on March 28^th – the audio was recently posted on the Planning Commission website (click the link from this website). 

Mr. Swanson ostensibly was representing three property owners, but he really was giving one barn-burner of a political speech.  He emphasized how angry everyone should be that the Planning Commission and County Council don’t have the last word in planning in Whatcom County, because the Council's decisions are subject to review by the Growth Management Hearings Board.   

(In reality, Jack knows that the County Council and Planning Commission have never had the last word, because he makes very active use of the courts to attempt to overturn decisions that do not favor his clients.  But railing against the Hearings Board, a 23-year-old institution, plays well to this crowd.)

And he urged the Planning Commission to vote for nullification.  That’s right, Jack Swanson was there to tell the Planning Commission to violate the law.

“I’m really concerned that we may get to the County Council here and they may throw up their hands and give up with the Growth Board, and remove my client’s property from the LAMIRD,” he said.  Well, that’s what the County Council has to do because it’s the law and the County did not appeal the decision. 

If Mr. Swanson wins in court, then he will want the Council to follow the law.  Not to make up its own mind about whether the court was right or wrong. 

But Jack wasn’t a tiny bit subtle about telling the Planning Commission to violate the law.  “Tell the Council, tell the Council to stand up to these people for a change,” he said, at about 1 hour and 25 minutes into the audio.  And then added “Am I getting angry?”

Nowhere near as angry as I was, four minutes later, when Jack Swanson justified his call for nullification by comparing the Growth Management Hearings Board's decision to the Holocaust.  Listen to it yourself, at 1:29:15 in the audio:

And now, as you know, you’re probably getting to wonder what the people felt like when they got on the rail, the cattle cars on the tracks that would take them to Auschwitz, you know.  Because that’s kind of where you are, right now, because of the failure of the County to appeal last year, year before, not appealing certain issues.  You’re now stuck with those, and it’s going to be a real fight to see what you can do to help out the people of Whatcom County, who deserve a lot more than what they’re getting right now.  So that’s my sales pitch, if you don’t mind.

I’ve been in the public process business for close to 30 years, and this is, without any competition, the most offensive and distasteful remark I’ve ever heard.  Nothing even comes close.  I had to turn off the audio when I heard that line because my hands were shaking. 

What disrespect for those who lost their lives at the end of that cattle car journey.  They were not facing the potential loss of speculative profits from their property, which is the concern of Mr. Swanson’s clients.  They did not have a right of legal appeal all the way to the Supreme Court, as Mr. Swanson’s clients do.  It’s just the worst type of demagoguery --

and our Planning Commission ate it up. 

Were you thinking that the Chair of the Planning Commission, Michelle Luke, would tell Mr. Swanson that he was out of line? 

Did you suppose that other commissioners, and County staff, would say “that’s totally out of line?”

Not a bit of it.  “That’s my sales pitch, if you don’t mind” were the last words of Mr. Swanson’s testimony.  Here are the next few lines from the audio:

Michelle Luke:  Thank you. 

Jack Swanson:  Thank you.

Michelle Luke:  Anyone else wish to speak?

And you know what?  The Planning Commission found Mr. Swanson so persuasive that they’re doing exactly what he asked for.  Yes, recommending nullification to the County Council.

This goes well beyond normal partisan discord.  It’s shameful, it’s out of control, and it’s happening right here where we live.