On Thursday, November 17, 2011, at 6:30 p.m. in the Whatcom County Chambers, the County Planning Commission will conduct a public hearing regarding the County’s proposal to update stormwater regulations for the Lake Whatcom watershed. http://www.co.whatcom.wa.us/pds/pc/agendas.jsp.
This proposal was prompted by a March 10, 2011 letter from Executive Kremen to the Department of Ecology regarding the City of Bellingham’s request to prohibit new water withdrawals from Lake Whatcom. To prevent this, the County promised three things: 1) to prevent additions of phosphorus to Lake Whatcom from new development projects, 2) to achieve a consistent and predictable set of development regulations, and 3) to meet Total Maximum Daily Load (TMDL) objectives for a Water Quality Clean-up Plan. http://www.co.whatcom.wa.us/pds/pc/pdf/exhibit-d-whatcomcntycommitmentltr.pdf.
Perhaps I was naïve, because I did not foresee how the Executive’s letter would be used. The County Planning Department did not focus on providing consistent and predictable development regulations. The Planning Department did not focus on meeting TMDL objectives. Instead, the Planning Department revised stormwater requirements in order to promote more Lake Whatcom watershed development.
While I strongly support updating the County’s stormwater regulations, this should not be done in connection with TMDL actions. The goal of the TMDL is to improve Lake Whatcom’s degraded water quality standards, and to remove the Lake from the 303(d) impaired water list. To be successful, the County’s TMDL efforts must be focused on restoration. This requires a reduction in the loading allocation from existing development so that less phosphorus is dumped into the Lake.
Because development in the Lake Whatcom watershed is the primary cause of water quality degradation, new development reduces our ability to restrict excess phosphorus loading and to improve water quality. Yet the intention of the revised stormwater provisions is to allow more watershed development. In other words, the County is relying upon the Lake Whatcom TMDL as justification for increasing that which is the very root of the problem.
The County maintains that under the revised stormwater provisions, watershed development will not increase phosphorus loading into the lake. Assuming this is true, (even though this is not guaranteed,) the best outcome from the proposal would be to maintain the status quo. However, maintaining the status quo is also a problem. We know, through years of scientific study, that lake degradation has increased over time. The logical conclusion is that maintaining the status quo allows on-going degradation to continue.
In sum, revised stormwater provisions that allow additional watershed development do not achieve Lake Whatcom TMDL goals. It is disingenuous for the County to propose such regulations, and at the same time pretend this is a TMDL compliant action. The revisions will benefit land developers rather than the 100,000 county residents who rely on the lake for drinking water. Those in charge of county policy need to explain to the public why staff time and resources have been spent developing yet another pro-growth action instead of action that will restore the lake and improve water quality.
The revised Lake Whatcom stormwater regulations also ignore the county executive’s promise to achieve a consistent and predictable set of watershed development regulations. The planning staff indicated the new provisions will not apply to undeveloped or underdeveloped lots already vested under older stormwater regulations. This includes watershed lots that were granted an extension on land use development permits last year, including permits that had already expired. And the County does not even know how many of the developable watershed lots are exempted under its generous interpretation of the vesting doctrine.
Because it is unclear how many watershed lots will be subject to the updated stormwater regulations, and how many will be allowed to develop under outdated standards, consistent and predictable regulations have not been achieved. In fact, without this information, there is no basis for the staff to assert that the revisions will prevent additional phosphorus loading into Lake Whatcom.
If the County enacts these stormwater regulations, it should include a provision extinguishing vested rights. This is justified by health and safety concerns. The Washington Supreme Court has repeatedly held that a local government may use its police power to extinguish vested rights where it is reasonable and in furtherance of a legitimate public goal. Protecting public health by preventing additional water degradation is a reasonable and legitimate exercise of the County’s police power. This is also justified under the principle of federal pre-emption. Local laws must comply with applicable federal and state regulations. Because the TMDL is required under the federal Clean Water Act, it trumps local and state vesting rules.
Finally, the stormwater proposal fails to provide consistent and predictable regulations or meet TMDL goals, because it does not include redevelopment. There is no valid reason to exclude redevelopment from this proposal. The watershed is already highly developed and much of the building that occurs in the watershed is actually redevelopment. Over time, as fewer undeveloped watershed lots remain, redevelopment will increase in significance and will become more important to regulate, while new development will have fewer impacts.
Outside the TMDL process, the revised stormwater provisions contain merit. The County should update its stormwater requirements. The revised provisions, potentially, could satisfy “No Net Loss” requirements under the Shoreline Management Act, or constitute updated science for critical areas under the GMA. Updated stormwater regulations satisfy several other state and federal requirements. These provisions should be considered for adoption throughout the entire county. However, the revisions should not be enacted as a Lake Whatcom TMDL compliant action.
If you have any reaction to this proposal, please send an email to, or testify before the Whatcom County Planning Commission. This may be your only opportunity to comment. If the Planning Commission forwards this proposal to the County Council with a recommendation to approve, and the Council makes no changes, no additional public hearing is required.