The Gristle


Wednesday, November 30, 2016

LAWLESS: Whatcom County’s commitment to lawlessness was on vivid display last week, as construction industry lobbyists, land speculators and property owners with trapped investments descended on County Council to protest a moratorium on development applications based on wells. Council enacted the moratorium after the Washington State Supreme Court agreed with the findings of a state growth board that the county had not coordinated residential development with resources that support development—areas served by adequate supply of water. The moratorium—supported by planning staff—would keep the problem of development based on wells from growing worse while the county works on solutions.

The recommendation from development professionals? Ignore the Supreme Court; and pray for a fix from a paralyzed Legislature.

County Executive Jack Louws patiently explained to listeners why ignoring the directives of the state’s high court was a poor idea; but he still continues to advance the equally poor idea of refusing to sit down with the petitioners who originally brought the challenge to the Supreme Court in an effort to work toward a settlement. Instead, Louws met privately with the same building industry that scapegoats the petitioners and advocates for lawlessness.

Testament to that lawlessness, Whatcom is the only one of 39 counties that has never once—even briefly—been fully in compliance with the Growth Management Act of 1990.

Central to the Act is the obligation of citizen challenge. Again and again, case law tells us that county planning decisions are presumed to be valid and “the burden is on the challenger to establish that the new adoption is clearly erroneous in view of the entire record… in light of the goals and requirements of the GMA. In order to find the county’s action clearly erroneous, the review board must be ‘left with the firm and definite conviction that a mistake has been made.’” That’s a high bar. Without legal challenge, county decisions—however poor they may be—are presumed to be correct unless challenged; and even then, petitioners must demonstrate they’re clearly in error.

Petitioners did just that in Whatcom County v. Hirst, demonstrating that the county was heedless in planning for growth where water was available. Indeed, the county never argued otherwise, and instead relied on an old and creaky balancing rule from the state Dept. of Ecology regarding stream flows, a 1970s-era rule that even Ecology had been wisely pedaling away from in the intervening decades as science on stream flows improved. The Supreme Court earlier this fall tore away the fig leaf, scolding the county for relying on Ecology for a duty that was the county’s alone under GMA.

The presumption of validity also imagines an ultimate responsibility: When a county recognizes a problem, reliance on an agency rule that the agency now holds scientifically suspect cannot reasonably be considered as a valid effort to protect the quality and quantity of ground and surface water.

Throughout a challenge that dates back to at least 2013, the petitioners have repeatedly offered to sit down with county officials and work out some solution to their concerns. The county refused; and instead spent hundreds of thousands of dollars in staff time and outside attorney fees fighting it out in court, kidding themselves they’d prevail when all signs indicated their approach was flawed and failed to yield to the visible reality that rural stream flows fall below minimums for extended periods each year. The Court kicked Whatcom County hard in the head.

Yet the county still has not offered to meet with the petitioners to hear their ideas for settlement; however, the administration last week met privately with building industry representatives to hear their ideas about how to thwart or upend the ruling. The advance allowed building industry representatives time to crowd their angry lobby into an evening County Council session to rage against the moratorium.

“We can’t make laws that go against what the state has determined appropriate for us,” Louws addressed the crowd with sympathy. Defining a series of Supreme Court decisions that have markedly reduced the latitude of counties in the determination of water availability, Louws noted that “the county must find a way to solve the problems under the law that we bound to uphold.

“The big problem for Whatcom County is, we’re the county right now that is before the Growth Management Hearings Board with this particular case. If we do something wrong, and we get an order of invalidity with the Hearings Board related to these issues, then they take control,” Louws explained. “It’s going to take us time to be able to solve this as we move forward.”

Louws said the state needs to come forward on behalf of counties with legislation to address the challenges imposed by the court.

But any legislative fix just papers over—clumsily, myopically—the observable reality that rural streams are but trickles for portions of the year: Their volumes are oversubscribed, and the sources that recharge their supply are similarly overburdened. There may be plenty of water, but not in volume at the times of year when it is needed. And the rights to water access claimed by well owners simply do not exist, or are in conflict with a century of water law.

“This is a problem that has existed for more than 30 years—basin closures and instream flows demonstrate scarcity,” notes land-use attorney Jean Melious, who argued the petitioners’ case before the Supreme Court last year. “Once the county starts addressing its problems and stops waiting for outside bodies to tell it that it may ignore water shortages, the county will find many solutions. These measures can include a whole range of practices, including water conservation, increased low impact development and decreased impervious surfaces, mitigation banking, and planning to make sure that new development occurs in areas where it will not have to take the water away from senior water users.”

Cash Spell
Past Columns
Napkin Plan

November 15, 2017

Less Wave Than Slosh

November 8, 2017

Statistics of Shame

November 1, 2017

Cashing Out, Cashing In

October 25, 2017

A Creeping Paralysis

October 18, 2017

Fire and Water

October 11, 2017


September 27, 2017

Ounce of Prevention

September 20, 2017

Dwelling On It

September 13, 2017

Keeping the Dream Alive

September 6, 2017

A Bridge Too Far?

August 23, 2017

The Missing Middle

August 16, 2017

The Last, Best Solution

August 9, 2017

Fire and Water III

August 2, 2017

Fire and Water II

July 26, 2017

Fire and Water

July 19, 2017

Some Assembly Required

July 12, 2017

Good, Bad, Ugly

July 5, 2017

Zero Hour

June 28, 2017


June 21, 2017

Home for the Holidays

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7:00pm|Sehome High School Little Theatre

Little Women

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Peter and the Star Catcher

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Romeo, You Idiot!

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Craft Bazaar

9:00am|American Legion Post #43

Holiday Festival of the Arts

10:00am|Meridian Street

Hot Cider & Cool Art

10:00am|Morgan Block Studios

Used Book Sale

10:00am|Everson Library

Red Barn Handpicked Holiday Market

12:00pm|Northwest Washington Fairgrounds

Holiday Gifts from the Kitchen

3:00pm|Lynden Library, Ferndale Library

It's Where the Sidewalk Ends

6:00pm|Bellingham Arts Academy for Youth

New Music, New Dance

7:30pm|Performing Arts Center Concert Hall

The Big Short One-Act Festival

7:30pm|McIntyre Hall

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7:30pm|Firehouse Performing Arts Center

Backyard Brawl

8:00pm|Upfront Theatre

VFW Breakfast

8:00am|VFW Hall

Pancake Breakfast

8:00am|Ferndale Senior Center

Pancake Feed

8:00am|VFW Post 1585

Holiday Bazaar

9:00am|Hillcrest Chapel

Christmas in the Woods

9:00am|Garden Spot Nursery

NSEA Work Party

9:00am|Acme Elementary School

Turkey Trot

9:00am|Squalicum Creek Park

Climate Reality

10:00am|Bellingham Public Library

South Fork Winterfest

10:00am|Van Zandt Community Hall

Fall Gardening

10:00am|Lynden Library

Cheese Fest

10:00am|Everybody's Store

Bellingham Farmers Market

10:00am|Depot Market Square

Rexville Grange Holiday Art Show

10:00am|Rexville Grange

Holiday Farmers Market

10:00am|Port of Anacortes Transit Shed Event Center

Lynden Book Club

10:30am|Everson Library

Salmon Sighting

12:00pm|Haynie Creek

Conquering Writer's Block

2:00pm|South Whatcom Library

Fishboy Holiday Show

2:00pm|FishBoy Gallery

NaNoWriMo and Indie Publishing

3:00pm|Everson Library

Skagit Wine & Beer Festival


Homeless Summit and Cold Weather Giveaway

3:00pm|Maritime Heritage Park

i.e. artists talk

3:30pm|i.e. gallery

Small Works Opening

4:00pm|Matzke Fine Art Gallery and Sculpture Park

Smith & Vallee Artist Talk

4:00pm| Smith & Vallee Gallery

WA 129 Poetry Reading

6:00pm|Maple Hall

Giving from the Heart

7:00pm|Depot Art Center

A Light in the Darkness

7:00pm|Church of the Assumption

Welcome Home Celebration

7:00pm|Village Books

Ruach Consort

7:00pm|St. Paul's Episcopal Church

Contra Dance

7:00pm|Eagles Hall

Michael Kaeshammer

7:30pm|Mount Baker Theatre

Legends of the Blues V

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Peter and the Star Catcher

7:00pm|Squalicum High School


7:30pm|Mount Baker High School

Holiday Festival of the Arts

10:00am|Meridian Street

Bellingham Repertory Dance's Emerge

7:30pm|Firehouse Performing Arts Center

Rexville Grange Holiday Art Show

10:00am|Rexville Grange

Cheese Fest

10:00am|Everybody's Store

Holiday Farmers Market

10:00am|Port of Anacortes Transit Shed Event Center

Rabbit Ride

8:00am|Fairhaven Bicycle

Community Breakfast

8:00am|American Legion Post #43

Rabbit Ride

8:30am|Fairhaven Bicycle

Getting in on the act


Sound of Music Singalong

1:00pm|Lincoln Theatre

A Musical Thanksgiving

2:00pm|McIntyre Hall

Harmony from Discord with Whatcom Symphony Orchestra

3:00pm|Mount Baker Theatre

The 25th Hour

4:00pm|Village Books

Southside Community Meal

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Way North Comedy Showcase

7:00pm|Farmstrong Brewing Co.

Rutie Dornfeld, John Miller

7:00pm|YWCA Ballroom

Trove Bellingham Farmer’s Market
Holiday Festival of the Arts

10:00am|Meridian Street

Wander + Camber Beer Dinner

6:30pm|Camber Cafe

Rocks & Gems

7:00pm|Bloedel Donovan Community Building


9:30pm|Green Frog

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