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.”