The Gristle

Fluid Motion
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FLUID MOTION: A well-attended forum over the weekend again laid out the central concepts of Western water law: “First in time equals first in right,” a construction that not only subordinates junior claims to older, and therefore senior claims, but also directs that a senior claim must be fully satisfied before subordinate claims to a water source are recognized. And: “Use it or lose it,” a concept that prohibits hoarding or squatting on an unused water claim.

Reading between the lines, the League of Women Voters forum on Whatcom Water Resources brought into focus that the City of Bellingham has a very senior and large claim to water; and that COB intends to put that claim to use to address some of the county’s water issues and, through that use, secure the city’s ancient claims to water sources beyond the Lake Whatcom reservoir—notably the Nooksack River.

The League forum brought something else into focus: Whatcom County holds no water claims and provides water service to no one; however, the county holds a very central role in water resource planning.

To that end, County Council Chair Carl Weimer introduced a proposal last week to craft a Water Action Plan to close on various coordinated water quality, quantity and habitat responses related to that role. The county in 2008 produced a ranked list of more than 300 water-related projects, a list that has languished without council policy direction, Weimer explained.

Council’s natural resources committee also considered a resolution that would strengthen the planning and coordination of the county, City of Bellingham, and the Lake Whatcom Water & Sewer District (LWWSD) under the Joint Lake Whatcom Policy Group, establishing goals and milestones to restore the lake. Bellingham City Council had considered a similar resolution the previous day, in anticipation of its discussion and adoption at a joint meeting of the three groups in March.

The timing of all this public planning and coordination is curiously off, as Bellingham City Council already took preemptive action last week, authorizing the mayor to ink a final agreement for a revised wholesale sewer services agreement with LWWSD, the largest of several water associations to whom the city provides water and wastewater handling services.

Under the revised 20-year agreement, the city would continue to provide wastewater handling and treatment services to the district for approximately 4,000 households in Geneva, Sudden Valley, and other urbanized areas near the lake. As presented to council, the revision will draw down the amount of wastewater the district may send into the city’s system from 3,200 gallons to 2,400 gallons per minute, to more accurately control inflow and infiltration (I&I), a term that defines the capacity of municipal sanitary sewer systems. The agreement also provides stability in rates for the city and the district over the long term, staff reported.

Before the agreement could be signed, however, City Council approved changes to the municipal code that governs these service agreements. Notably, City Council stripped out very clear, long-standing policy language that prohibits “the extension of new sewer mains outside urban growth areas and limited areas of more intensive rural development” (LAMIRDs). In place of that clear policy language, council inserted citations of the state Growth Management Act (GMA) that describe and limit extension of city services into those areas.

The purpose, staff advised, is to bring city code more into alignment with state law, and to move more stringent restrictions into specific service agreements, “retaining flexibility for the city to impose additional contractual limitations on the provision of sewer services in rural areas tailored to the circumstances of each contract.”

Yet state law is clearly less restrictive than the now-stricken city policy against providing urban services to rural areas, substituting instead soft, permissive language under the broad rubric of public health and safety. The code revision also strips out language that asserts these issues require review and approval by City Council.

We’ve written of the limitations of GMA that establish an onerous and adversarial process for citizen review of government decisions, and in which doctrine declares those decisions are presumed to be valid unless indisputably in error, setting a high bar for legal challenge. Equally discouraging, striking the very clear language of council policy and purview punts that challenge to remote and diffident state boards and courts.

A proliferation of interlocal agreements and similar executive instruments shift policy and decision-making away from legislative bodies and their open processes into the control of administrations, where contracts are negotiated piecemeal, outside of public view. Such contracts and agreements surface later, unrecognizable from what the public originally reviewed and commented upon. A parallel trend is the elimination of clear policy in preference for the language and oversight of the state, at the very moment when the state is curtailing its rulemaking authority and asserting that authority belongs to local jurisdictions. The jaws of these trends squeeze a great deal of power into the offices of the administration—the mayor and executive—consolidating and strengthening their authority even as councils abdicate their own.

Is it coincidence that the city seeks greater “flexibility” and negotiating freedom to extend water and sewer services at the very moment COB is also contemplating an expanded role in providing those services as a potential solution to county water problems? City Council should probe deeper.


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March 11, 2014

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