The Gristle
Doghouse
DOGHOUSE: It’s tempting to read too much into the timing and meaning of two orders against Whatcom County by separate state authorities, but it does seem reasonable to conclude each represents a strong warning by state authorities that Whatcom government is not moving with correct direction or speed on policy that best safeguards the public interest.
The first order, arriving from the Western Washington Growth Management Hearings Board, found the county is permitting too much growth in rural areas. The hearings board invalidated portions of the county’s comprehensive plan that attempt to permit that buildout.
The GMHB is considering the county’s request to lift the order, a decision they’ll make soon. But as Whatcom County Council continues its slow struggle with both the implications and response to the order, as they did in a special committee this week,
update: the board granted the request.
A second decision is also pending from the state Dept. of Ecology in response to a petition from the City of Bellingham. The city asked the agency to use its authority to close Lake Whatcom to additional well withdrawals. The city maintains its senior water right is being harmed by the subordinate rights of developments that degrade Bellingham’s municipal water supply; and while Ecology continues to mull the state’s ultimate response to the petition, it’s clear the agency is sympathetic to Bellingham’s conclusions, drawn as they are from Ecology’s own data.
The petition was a canny move by Mayor Dan Pike.
Pike tumbled to the idea that the city was spending millions to acquire development rights in an effort to protect the lake. Under Washington law, you cannot build unless you can demonstrate sufficient water supply to the proposed development. So a ban on well withdrawals, in rough terms, just ends the discussion of further subdivisions or compensations in and above Lake Whatcom.
Ecology’s menu of responses is limited; and as the city’s arguments are framed in arguments the state agency has also made, it seems likely some restriction on well withdrawals will occur until the county adopts a plan for the watershed that is deemed sufficiently protective. Importantly, the proposed restriction acknowledges that not just obvious surface water, but subtle aquifers and tributaries that draw and feed must be considered in the overall health of a water body.
To their credit, County Council last week cooperated with the spirit of the petition and extended their ban on additional subdivisions in the Lake Whatcom watershed.
Both orders—the one in place and the one soon to arrive—are similar in that they arrive in response to the county’s terrible inability to craft a plan for land and water resources that can pass a smell test. Both orders are backed by rulings of the Washington State Supreme Court; and both are resisted by a defiant County Council majority who believe they champion some higher interest of local control and individual property rights.
The state has noticed.
Let’s back up a bit and acknowledge that both the GMHB and DOE—separate, uncoordinated entities acting on their own imperatives—have each been extremely reluctant to recommend action against the county. Counties, by their very nature and organization, are presumed by the state to be operating lawfully in the public’s interest, and are yielded a great deal of latitude in how they craft policy that pursues that interest. However rough our cowboy governments might play, they’re just assumed to be wearing the white hats. So it is significant that both orders (without trying to read too much into or conflate them) signal a lack of confidence or faith that the county is diligently pursuing that identified public interest.
The orders are interrelated in another way, too.
County Council last August debated whether to lift its ban on additional subdivisions in Lake Whatcom watershed. Council member Ken Mann convinced the majority to extend the ban while he crafted a plan that might transfer development rights (TDR) out of the watershed, what he saw as an equitable market-based solution that balances property rights against the public’s right to a protected water supply. He convinced them again as the ban was set to expire in 2011.
For a TDR to work, though, there has to be receiving areas for that transfer. Simply put, the house you cannot build here gets built there.
Yet Mann’s efforts were undercut before his plan was even in draft when County Council in December abruptly agreed in a settlement with property owners in west Blaine to not require that those hundreds of acres receive some of that density transfer. A solution to Lake Whatcom was foreclosed upon by an intemperate settlement—all of the buildout with nothing to ameliorate the impacts of buildout: Plenty of quid delivered to private landowners; no pro quo for the public.
The hearings board order of invalidity throws into doubt the vesting and development rights of those projects around west Blaine, subjecting them to additional scrutiny by state boards and the courts, certainly jeopardizing any easy financing of these projects by stripping them of the predictability banks and lenders require. And the well restriction removes all logic and purpose from a discussion of what undeveloped lands around Lake Whatcom and the rights to develop them are worth.
So while a County Council majority snarls and blusters that they’re acting as principled defenders of property rights, their defiance has served to actually harm the interests of these property owners and has achieved nothing lasting with regards to the larger policy reversals required to get the county out of the state’s regulatory doghouse.
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