The Nature of the Emergency
Wednesday, January 31, 2018
THE NATURE OF THE EMERGENCY: An important provision to Senate Bill 6091—the approved legislative “fix” to the issue of rural wells in impaired basins with reduced streamflows—a county may rely on or refer to applicable minimum instream flow rules adopted by the state Department of Ecology.
The latitude of may is multifold—first, it anticipates local governments may adopt water resource rules that are more cognizant and protective of streamflows than Ecology; second, it admits that even Ecology’s streamflow rules are currently under review and revision by that agency; third, it acknowledges that river and drainage basin systems differ and cannot be governed under the provisions of a single, hastily drafted bill; fourth, it recognizes that the bill itself is inadequate, and pretends to “fix” a problem by continuing to permit it and kicks the can down the road on issues of resource depletion and exhaustion: Someday, the legislature demurs, we’ll get around to fixing the problems caused by this bill’s “solutions.” Notably, other provisions of ESSB6091 specifically call out the precarious impaired condition of the Nooksack River, and establish an accelerated timetable of August 2020 for Ecology to establish new rules for that water resource inventory area (WRIA).
In essence, the new law gives local governments a temporary pass to be heedless and foolhardy with water resources, but governments are under no particular compulsion to accept the pass. And they’re forewarned the pass itself is fraught with complexity and uncertainty and, likely, impermanence.
Despite that caution and admission that these matters remain in flux and subject to future revision (and review by the courts), Whatcom County Planning and Legal departments wasted no time in changing the generous language of may into the imperative of must, proposing an emergency ordinance to lift the current moratorium on building permits in areas of impaired streamflows in the Nooksack WRIA. Staff assured County Council that with the enactment of ESSB6091 their moratorium “is no longer necessary to ensure Whatcom County is in compliance with state law.”
“This ordinance allows the county to immediately make our code consistent with state law, and provide staff with the ability to begin processing permits consistent with state law, for those whose projects were in some cases abruptly stalled by the Hirst decision about 16 months ago,” Prosecuting Attorney Karen Frakes explained.
It’s staggeringly bad public policy, given the legislative and legal history that led to the state Supreme Court’s rulings on a series of cases of water sufficiency around the state, culminating in Hirst, a decision anchored in Whatcom County’s heedless and hardheaded unwillingness to pair growth with adequate water resources that support that growth. Since the county has made absolutely no headway on addressing the central finding of Hirst, the proposed ordinance throws open the gates to another renewed stampede of permit applications, worsening the problem and making solutions simultaneously more expensive and less effective.
The WRAI 1 Planning Unit—the paralyzed and nearly comatose assemblage of initiating governments, agencies and stakeholders designated by ESSB6091 to (somehow, having been at it for more than 10 years) create new long-term water usage plans—met last week and learned the county and its taxpayers will be on the hook for any future costs of mitigation required for the drilling of wells permitted under the new law.
County Council was similarly advised of that financial certainty this week, while encouraged on the other hand by planners and legal staff to immediately throw open the floodgates to this drilling.
Their directive is framed as an emergency ordinance, asserting that “an emergency exists due to the impact of the Hirst decision has had on many rural property owners and their ability to develop their land.” It is intended to nullify the previous emergency ordinance that, frankly, held the broader and loftier goal of trying to protect the entire tax base and taxpaying public of Whatcom County against approaches Supreme Court justices in plain language found unacceptable. And doubtless will continue to find unacceptable.
The County Charter is clear: An emergency ordinance must be necessary for the immediate preservation of the public peace, health, or safety or support of the county government and its existing institutions. A proposal to hasten development meets none of those thresholds.
Planners understand that as early as February of next year the county and Ecology will be on the verge of a more restrictive rule for the Nooksack. Meanwhile, in those 12 months, planners would be wise to begin a comprehensive review of the environmental impacts that contemplate drawing a potential of an additional 24 million gallons of water out of the Nooksack each day at projected buildout.
In the end, the peculiarities of the new state law apparently makes continuance of the current moratorium untenable, and the county administration put Council on notice that—whatever Council choses to do with its moratorium—the administration believes it is legally bound to begin accepting permit applications immediately. The new state law takes priority over county law as it relates to permits, the County Executive explained.
“I’ve been advised that, technically, from the day the state passed the legislation that the county had an obligation to start processing permits. State law takes priority and we need to do this,” Executive Jack Louws said.
He put it into perspective: “This emergency interim ordinance basically says, ‘Let’s accept what the state has made into law, and follow that. Let’s allow the planning side of it to work itself out over the next year, and let the planning and permitting catch up with each other.’”
Sadly, these two endeavors have never linked up in Whatcom County; and now that the “fix” is in, it is unlikely they ever will.