Noncompliance 2013: The Game

The recent Growth Management Hearings Board decision was clear about Lake Whatcom.  Whatcom County remains noncompliant with the Growth Management Act because it has failed to protect the lake’s water quality. To become compliant, the county needs to: 1) prohibit any excess phosphorus run-off from new watershed development, and 2) reduce the phosphorus generated from existing development.  That’s it…. a combination of actions that accomplish those two goals. How hard could that be?  Welcome to Noncompliance 2013!

Several Lake Whatcom regulations are pending before the county council that will require revision to comply with the GMA and the Growth Management Hearings Board decision.  In the spirit of Noncompliance 2013, I thought it would be fun to follow the council’s compliance efforts, tracking how it interprets the hearings board decision.   

If you want to play, here is how it works. To understand the compliance requirements, you need to read about 3 pages of the decision that pertains to Lake Whatcom.  It starts with the first complete paragraph on page 51 and ends after the first paragraph on page 54.   https://docs.google.com/file/d/0B4uUR0E44bH3bDFYSkstY29CSnc/edit.  But really, it just reiterates what I stated above.  The county must: 1) prohibit any excess phosphorus run-off from new watershed development, and 2) reduce the phosphorus generated from existing development.

Watch the hilarity as the council hems and haws its way through GMA compliance requirements that it does not want to enact. (Just be careful not to fall and injure yourself in loopholes. They are larger than they appear.)  There might even be a special appearance from some of those zany kids at the Whatcom County Planning Commission, and an opportunity to hiss at the evil villains from the Department of Ecology.  Most importantly, do not forget to bring your wallets, because council could not sponsor Noncompliance 2013 without the public’s generous support and tacit approval.

Ready to play?  I will warm you up with some proposals that are likely to play a role in Noncompliance 2013.

Clustering Amendment to Moratorium

Every six months, the council has wisely extended the moratorium on subdivision of lots under five acres in the Lake Whatcom watershed. This protects the lake from the impacts of new growth until the county adopts protective land use regulations.

Last month, Councilmember Sam Crawford introduced a revised moratorium allowing subdivision and boundary line adjustments of lots under five acres where clustering is used and the overall density is not increased.  Clustering places houses closer together, with the primary benefit being creation of open space and reduction of development costs.

Clustering, by itself, does not address excess phosphorus run-off.  And it will not achieve a zero phosphorus standard for new watershed development. (Remember our two goals?)  The hearings board stated that “the necessary measures to protect water quality must go beyond down-zoning.”  Mr. Crawford’s amendment would permit more watershed development without more protection, which sort of defeats the purpose for the moratorium.

There is another problem with the amendment. In a broader county-wide context, the hearings board determined the county’s clustering regulation failed to protect rural character and prevent sprawl because the open space that is created is not permanent.  Therefore, it did not comply with the GMA.  If the county’s clustering regulation does not protect the rural area generally, it certainly will not protect Lake Whatcom, which requires even greater protection. 

Hopefully, even council has the wisdom to let the clustering amendment die a silent death, but jokers are wild during Noncompliance 2013.  Watch to see which version of the moratorium is extended.

Zero Excess Phosphorus Standard

In the last hearings board decision, (Noncompliance 2012,) the hearings board stated that “Comprehensive Plan commitment to a zero-discharge policy and expedited adoption of regulations is probably indicated.”  Pete Kremin promised DOE as much even before that, when he was still the county executive.  Fast forward to today and… oops, still no updated stormwater regulation for the Lake Whatcom watershed.  It is Noncompliance 2013, and the county has still failed to adopt “measures that protect Lake Whatcom water quality, as instructed by Ecology (DOE).”   

The county did dabble in updated stormwater regulations for new development last year, but only as a very low priority. The only thing hurried was the return of the proposed draft to the planning department after it came forward with a zero excess phosphorus standard for the lake. Honestly, what was the planning department thinking?

The planning commission watered down the stormwater regulation to allow 25% excess phosphorus run-off for new watershed development.  The commissioners were not fooled by the “fake” science relied upon by state and federal agencies.  Instead, they were guided by their own non-biased technical experts, local engineers and consultants who work for developers.  (The technical team met at least twice and the public was not invited.)  The technical team determined that a zero excess phosphorus standard could not be achieved.

But that is not the way the hearings board sees it. Remember those two goals?  The hearings board expects the county to prohibit any excess phosphorus run-off from new watershed development and 25% is more than “any.”  Council will be forced to deal with this conflict in Noncompliance 2013 and the discussion promises to be priceless. 

Small Lot Exemption

In fact, council has already discussed the planning commission's recommendation to allow a 25% excess phosphorus allowance.  And council immediately focused on the real heart of the issue. They asked whether this stormwater proposal would make new watershed development more expensive. Because that would not be fair.  

Apparently, equity requires that today’s property owners develop property at the same relative cost as property owners 25 years ago.  So if we are now imposing higher environmental standards, and that makes development more expensive, then somebody else ought to pay for this increased cost…for example, all the  thirsty people who want clean water.  Most especially, the cost should be paid by people who live in the watershed.  (The old ones, not the new ones who will be subsidized.)  

Based on cost concerns, the council is considering an exemption from the new stormwater standards for lots that are 10,000 square feet or less.  The exemption would apply to more than 700 lots, or roughly half of all undeveloped watershed property.  The county council has referred this matter back to the planning department for further consideration.    

Clearly, the council has failed to take the theoretical basis of the exemption to its logical conclusion.  By providing property owners the right to develop property unrestricted by the costs of compliance with public health and safety regulations, the council is reversing centuries of common law prohibitions against the use of property in a manner that harms neighbors. It is reversing long standing U.S. Supreme Court law regarding zoning and the police power. 

Wow.  It is shaping up to a very memorable Noncompliance 2013.  Thanks for playing, and Happy New Year everyone.