The Gristle

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REANIMATORS: Like a trauma patient waking from a coma, the recently revived Whatcom County policy­makers struggle to pick up the broken pieces of a forgotten life. Earlier this month, County Council unanimously approved the creation of a Water Action Plan to address various water quality, quantity and habitat issues. Their decision essentially resurrects a document from 2008 detailing nearly 300 stalled or languishing water resource projects, ranked by available funding and the relative merits (“bang for the buck”) of the proposal.

Interest in the document cratered once the 2008 council discovered they’d have to spend money to move projects off the list in less than a century, and slid from view as water resource inventory management capsized in the new priorities of a council aggressively opposed to planning of any sort.

As an artifact, the ranked list is rather sad: Number 5, “review restoration options and create a plan to address water quality degradation and how to attempt to restore Lake Whatcom and the Lake Whatcom watershed to a more natural functioning ecosystem,” is depressing enough with its squishy and passive hesitance (“prepare to begin to consider how to attempt…”) and its footnote that “no formal planning is being developed,” only to realize this same topic is the subject of the joint meeting of the County Council, Bellingham City Council and Lake Whatcom Water and Sewer District Commission later this month—motionless for six years!

County Council also reanimated the zombie Planning Unit authorized more than a decade ago under the state Watershed Planning Act (RCW 90.82). The act attempted to create an inventory of discrete planning areas defined by watershed drainage boundaries. The state’s 62 water resource inventory areas (WRIAs) would attempt to weld state goals and local imperatives to manage water resources. Central to each is the planning unit, a group of stakeholders who can build consensus in order to craft and implement a plan to address the specific issues of each WRIA.

While other WRIA planning units around the state have been able to organize and implement a plan to address issues of water quality and availability (notably on the Olympic peninsula and in lower Columbia cattle country), Whatcom County’s WRIA-1 is paralyzed by dysfunction and inaction. Incomprehensibly, WRIA-1 requires the unanimous consent of quarrelsome private well owners, diffuse (and under-organized) environmental interests, developers, agricultural and fishing ventures, together with municipal and non-municipal water purveyors in order to advance and implement a water resource action plan. Ultimately, these caucuses must produce a plan then acceptable to the tribes. In short, caucuses that cannot and will not ever completely agree must completely agree in order to move forward.

In reviving the WRIA-1 Planning Unit, council requested the planning unit discover some [other] way of reaching organizational consensus; and the Gristle would suggest a quick survey of how other functional WRIA planning units around the state are assembled and organized. For example, the unusually productive WRIA’s on the peninsula require unanimous consent only of the initiating governments, informed by a simple majority of the non-governmental stakeholders. Procedural matters require only the simple majority of members present at the planning meeting.

Paralysis and dysfunction do not punish all stakeholders equally, and the sorts of status quo, business-as-usual antics that have decayed and destroyed water resources in Whatcom County have continued (or accelerated) in the gummy morass. Years of paralysis have served certain stakeholders oh-so-well, particularly those who profit from the inexorable unchecked build-out of rural Whatcom County.

Writing for the Natural Resource Journal, James Huffman noted the limits of collaborative, stakeholder-based governance as it applies to Western water law. Huffman is dean emeritus of the law faculty at Lewis & Clark Law School in Portland, Ore.

“The reason most existing river basin management regimes have been largely ineffective,” Huffman writes, “is not that river basin management is a bad idea, but rather because they lack the essential rights element that is necessary for any successful negotiated agreement. Where all stakeholders have an equal vote—which is the same as a veto if unanimity is the rule of decision—and none have rights that will be recognized as trumps in the event of a negotiated agreement violating such rights, the only real incentive for any party to agree to less than everything they want is the threat of intervention by a higher authority or by a court in the context of a lawsuit.

“The aspiration of collaborative governance,” he observes, “is seldom able to overcome the harsh reality of interest group politics. The only contexts in which collaborative governance by unanimous agreement works on a reasonably consistent basis are those where the participating community is small and homogenous.”

Following on, law professor Reed Benson—editor of the Journal and executive director of WaterWatch, a nonprofit engaged in restoring streamflows—notes, “Some observers believe that watershed councils and other locally driven, consensus-based efforts have gained popularity in the Northwest largely because they can help guard the status quo. Whatever their potential benefits for resource protection and restoration, local consensus efforts seem likely to protect existing water uses, limit state involvement, and reduce controversy on contentious issues.”

“In Whatcom County,” Benson writes, “the state Department of Ecology has taken little action against widespread illegal water use, despite a 1993 survey that found over 500 users taking water without a valid right. ...Many had been using water illegally for decades, without a valid state permit, decreed right, or precode claim.”

Through years of inaction, those draws have doubled and doubled again. It cannot continue.

Thanks to Jean Melious for pointing the Gristle in the right direction on the legal weaknesses of consensus-based planning.

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