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State Supreme Court Rules Against County Plan

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The Whatcom County Comprehensive Plan for water resources has been ruled illegal by the Washington State Supreme Court. The issue now returns to lower courts and, of course, to the Whatcom County Council. The plan basically piecemealed together regulations allowing excessive development without enough protection for our water supply. Four local enviromentalists: Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim, took the county to the Growth Management Hearing Board and won a decision saying the county was not complying with state law. The county then challenged this in 9th Circuit Court of Appeals and the hearings board decision was overruled. The environmentalists took it to the state Supreme Court and today won a reversal of the appeals court decision.

Thus, the county will have to tighten up the water usage processes of the illegal plan that was put together by the former, very conservative council. Our current, more liberal, and environmentally sensitive council will probably now do very little and will wait to see what might happen next. That seems the routine with other important issues like the Lummi Island ferry, Louws fantasy jail, and relations with the sovereign Lummi Nation.

I am posting the pdf of today's court decision below and thank Elisabeth Britt for forwarding it to me. I hope comments from those who know more about this than I do will help explain it. And I would welcome any of the four litigants to comment or extrapolate on what all this means, as well as those who think this decision is bad for our county. I am open to guest articles pro and con.

The State Supreme Court decision on Whatcom County's Comp plan.

About John Servais

Posting Citizen Journalist • Fairhaven, Washington USA • Member since Feb 26, 2008

John started Northwest Citizen in 1995 to inform fellow citizens of serious local political issues that the Bellingham Herald was ignoring. With the help of donors from the beginning, he has [...]

Comments by Readers

David Camp

Oct 08, 2016

Well it was an anomaly that non-exempt wells were allowed in Whatcom, but not allowed in Skagit County. Ask any Skagitonian what they think of that!

What’s missing in this whole contretemps is any concept of materiality - the reason Whatcom County permitted exempt wells is that household use of water is almost entirely returned to the watershed via the septic system - they have a negligable effect on instream flows. It’s the big industrial and agricultural users who have the most effect on instream flows.

But I think the real agenda is to limit development.

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Larry Horowitz

Oct 09, 2016

Having read the Supreme Court’s opinion, the primary issues are:

1) Does the County comply with the GMA if it relies on Ecology’s decisions regarding the closure of various basins for water withdrawals?; and

2) If Ecology’s decisions regarding the closure of various basins fails to restrict permit-exempt wells, is it possible that the cumulative effect of exempt wells will reduce the flow in a water course below the minimum instream flow?

The Court’s majority believes the County cannot rely on Ecology’s decisions, but the dissent believes it can.  Both provide compelling arguments.

What seems clear is that Ecology’s failure to act to close a particular basin to all withdrawals, including permit-exempt withdrawals, has a dramatic impact on the county’s water supply.  If Ecology fails to act to close a basin to permit-exempt wells due to inadequate supply, then Ecology’s failure to act will have devastating effects if the County were allowed to rely on Ecology’s decisions regarding closure.  In fact, the Court found that “the County’s comprehensive plan does not protect water availability because it allows permit-exempt appropriations to impede minimum flows.”

To date, even though there is “significant evidence that minimum flows are not met in rural Whatcom County, Whatcom Creek is the only basin – out of 48 basins in WRIA1 – closed to permit exempt appropriations.”

It appears that Ecology has failed to act to properly close additional basins to permit exempt appropriations.  Had the Supreme Court allowed the County to rely on Ecology’s decisions to comply with the GMA, then Ecology’s failures would continue to impair instream flows.

Relying on Ecology to comply with the GMA only works if Ecology does its job.  Based on the evidence, it seems clear that Ecology has failed to act, so allowing reliance on Ecology to comply with the GMA would send the wrong message and fail to protect the County’s water resources.

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Wynne Lee

Oct 09, 2016

From Jean Melious, lead lawyer on this court case, a description of what the case and ruling mean. Posted on the getwhatcomplanning blog (in case the linkd oesn’t work) http://getwhatcomplanning.blogspot.com/2016/10/washington-supreme-court-to-whatcom.html

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Larry Horowitz

Oct 09, 2016

In Jean’s blog post she writes, “Ecology argued that nobody – neither Ecology nor the County – has any obligation to address the water rights or water demands of new rural permit-exempt wells.”

This claim by Ecology is contrary to Ecology’s own SEPA Handbook.  In Chapter 7 of the Handbook “SEPA and the Growth Management Act”, Ecology emphasizes the need to address CUMULATIVE IMPACTS of development as part of its environmental review.  Ignoring the cumulative impact of permit-exempt wells violates Ecology’s own SEPA requirements. 

What has become obvious is that Whatcom County and its cities are either approaching or have exceeded their carrying capacity in terms of water adequacy. 

Have the County and Ecology ever considered the cumulative impact of all the potential permit-exempt wells? 

Link to Ecology’s “SEPA and the Growth Management Act”
http://www.ecy.wa.gov/programs/sea/sepa/handbk/hbch07.html

 

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David Camp

Oct 12, 2016

Larry - you say “If Ecology fails to act to close a basin to permit-exempt wells due to inadequate supply, then Ecology’s failure to act will have devastating effects”

This is hyperbole. Exempt wells are exempt specifically because they have a very small effect on instream flows. Household water use is 90% returned to the groundwater via septic systems. As Tim Johnson;s article in this week’s Weekly clearly states, the main aim is to reduce sprawl. I believe this to be a commendable objective but let’s not overstate the case against household wells - the real issue is reducing sprawl that eats up farmland and requires more automobile use and hence gas consumption. Exempt well restriction is just a useful tool in this regard.

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Larry Horowitz

Oct 12, 2016

David, you are entitled to your own opinion, but IMHO, the cumulative impact of all potential permit-exempt wells in the county is significant.  It is my understanding that are more than 10,000 vested lots in the county.  At 5,000 gallons per day per exempt well, we’re talking about the potential of 50 million gallons per day for all exempt wells.

Allowing this potential impact to move forward without regulation will be devastating, as I have said.  If you disagree, so be it.  When I lived in the mountains of North Carolina, my well occasionally ran dry in the summer.  I don’t face that risk right now, but I’d hate to be living in Whatcom County and depending on well water.

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