The Gristle

The Rule of No Rule
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THE RULE OF NO RULE: “The future is brighter today,” political organizers at SAVE Whatcom crowed in response to a decision by a panel of three state Court of Appeal judges last week that overturned the finding of the Washington Growth Management Hearings Board that Whatcom County had been heedless in planning growth in tandem with adequate water supply. “The county won a clear victory in the case,” the conservative political group broadcast, ”a victory also perceived to apply to rural property owners.”

As it often is in politics, nothing could be further from the truth.

The decision of the Court of Appeals is almost cruelly unhelpful in its guidance to Whatcom County policymakers, yielding no insight into how the county should approach future water decisions and—frankly—leaving the county at liberty to treat rural property owners just as shabbily as ever.

In April 2013, the state growth board found the county’s Comprehensive Plan did not protect rural character by adequately protecting surface and groundwater resources. The county, the board found, had continued to permit groundwater withdrawals for residential development in basins that were either partially or fully closed to withdrawals. More than 1,600 wells have been drilled in closed basins since 1997, according to the hearings board’s decision.

The county fought the board’s determination, spending more than $140,000 with Seattle law firms and perhaps an equal amount in staff time to challenge the decision. Arguably, the county’s purpose was to receive clarity from the courts on how to proceed on future water policy. This the court did not provide, leaving unresolved all the substantive matters the county must consider in future planning.

“The board erroneously applied legal principles from one rule, the Skagit River Basin Instream Flow Rule, to the rule at issue in this case, the rule for WRIA-1 also known as the ‘Nooksack Rule,’” the court argued. “But the board’s reasoning… is based on a uniform interpretation of instream flow rules, erroneously assuming that they regulate permit-exempt withdrawals in different regions in the same manner. ....[the state] Supreme Court recognized that different basin rules contain different language and expressly declined ‘to search for a uniform meaning to rules that simply are not the same.’”

The hearings board relied on a 2013 decision by the Supreme Court that found the state Dept. of Ecology overstepped its authority in establishing a balancing rule for the Skagit that insufficiently protected instream flows. The growth board reasoned “the applicable legal principles are the same” in a similar balancing rule Ecology created for the Nooksack; however, the appeals court argues that the Skagit Rule “shall be expressly subject to instream flows” and expressly governs permit-exempt uses of water, while no such consideration exists in Ecology’s flow rule for the Nooksack.

Leaving aside the question of whether two drainage basins with headwaters in the North Cascades are markedly different from one another to be considered unique (the appeals court provides little evidence for this), the laws of supply and demand acting upon each are surely identical—you count up the number of subscriptions on their supply and compare to the total amount of supply. For the Nooksack as well as the Skagit, the rivers fail to meet minimum instream flow requirements a majority of the time through the dry months of the year. The requirements set by water law, that new withdrawals cannot impair an existing water right, are also uniform throughout the West.

The decision of the appeals court was similarly unhelpful to Ecology, paralyzed between an invalid balancing rule for the larger volume of Skagit flows that is substantially identical to a rule left in place for the smaller volume Nooksack flows.

For residential property owners, the issues were never about the built environment—the wells allowed, the homes constructed, the property rights established—but the unbuilt environment, and how much future rural development the county can permit, given its water supply is oversubscribed. On that, the court provides no guidance.

“The court’s decision essentially leaves the status quo in Whatcom County,” commented Jean Melious, a land-use attorney who had filed the challenge of the county’s growth plans to the GHMB. “What is the status quo? Everybody openly acknowledges that three-quarters of the county’s farmers are using water without legal water rights. Everybody knows that most of the county’s watersheds are closed to new water withdrawals, either year-round or during the dry season, yet tens of thousands of new houses will pump water out of the groundwaters that supply water to closed rivers.

“It’s also no secret,” she continued, “that the county’s 20 years of noncompliance with the Growth Management Act has resulted in an impressive blueprint for new greenfield land conversion everywhere in the county: agricultural areas, rural areas, and oversized urban growth areas around cites.”

Whatcom County, she points out, has planned and provided for the construction of the equivalent of five new Blaines outside of cities. It has fought successfully for the right to ignore this new development when it calculates the size of urban growth areas, and when it allocates future population growth to cities, the county’s practice is to ignore the amount of new development that it has already planned for, outside of cites. 

“The county,” Melious notes, “still has the authority to correlate its planning with water availability, but the Court of Appeals’ decision exonerates it from considering whether water is available for the very significant amount of new development that will use exempt wells in closed watersheds.

“Throughout the long administrative process before Whatcom County, and then before the Growth Management Hearings Board, the Dept. of Ecology never once said that it’s a good idea to allow the kind of massive new development that can occur in Whatcom County, on farmland and in rural areas where water is not available.”

No answer is coming from the courts, other than Whatcom County stands alone in its planning authority. That was already understood.

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