Wednesday, January 9, 2019
‘ALTERNATIVE METHODS’: After nearly 30 years of intransigence, Whatcom County has finally come into compliance with the Washington State Growth Management Act of 1990—by essentially running out the clock on citizen challenges to the inadequacy of county planning on growth.
In the quiet lull of the holidays, the Western Washington Growth Management Hearings Board closed the outstanding challenge of the Hirst petition that the county was failing to plan growth in tandem with adequate resources for growth. The essentials of the Hirst complaint remain relevant (and will undoubtedly plague the county for generations); a decision of the Legislature last session simply renders those complaints moot.
In 2016, the Washington State Supreme Court agreed with the findings of the state growth board that “the county’s Comprehensive Plan does not satisfy the GMA requirements to protect water availability or water quality,” noting “it is the local government—and not the state Dept. of Ecology—that is responsible to make the decision on water adequacy as part of its land use decision.” Responsibility for planning, of course, is the flip side of local control and authority over planning.
The assertion, however, held profound consequences for other counties and jurisdictions around the state that had relied on Ecology as their authority in determining adequate water supply to issue building permits, a requirement of GMA. These counties called on their state representatives to issue a “fix” that would bring the state agency back into a partnership role in determining supply.
In response to the Supreme Court’s decision, the 2018 Legislature adopted ESSB 6091. The law authorizes Ecology to work with specified local jurisdictions, watershed planning units and federally recognized Indian tribes to review and update various watershed plans to identify, among other things, impacts of permit-exempt wells on groundwater supplies.
Importantly, ESSB 6091 does nothing to resolve the actual underlying argument of the Hirst complaint, that using Ecology’s established rules Whatcom County had oversubscribed its water supply in numerous river basins along the northern tier. The Nooksack River drainage encompasses the bulk of Whatcom County and is designated by the state as WRIA-1.
As the hearings board dryly commented, “The amendments included in ESSB 6091 provided alternative methods for achieving compliance with [GMA], the provision which requires counties to adopt comprehensive plan rural element measures to protect surface water and groundwater resources.”
The law does require Whatcom County to adopt an updated watershed plan for WRIA-1 by February of this year.
Whatcom County Council received a status report on the work of the WRIA-1 Planning Unit in a special session this week that reported on the WWGMHB finding of compliance, as revised by the Legislature’s “fix.”
In the report, Council learned the Planning Unit was unlikely to achieve consensus by the deadline imposed by ESSB 6091, and were instead advised to send an index of work that has been completed along with a letter to Ecology explaining the impasse. This is not at all surprising, considering the diverse and often fractious Planning Unit is not a unit, and to a large degree many of its citizen members do not plan and indeed are hostile to planning.
The scope of work required under ESSB 6091 is narrow, and concerns primarily how the county will mitigate or offset the impacts of a projected 2,100 additional wells in those impaired basins over the next 20-year planning window.
Even here, after a year, the Planning Unit was unable to reach consensus—arguing over whether wells should be metered, and if metered whether that should be voluntary; grousing over the fee, if any, to permit new wells; and in particular quarreling over the volume of water each of these wells might draw. These are fairly straightforward questions, once you have acknowledged water supply is oversubscribed. But, of course, there is no agreement on that point, either.
“We’ve had a very challenging process placed in front of us since last February when the state enacted legislation,” County Executive Jack Louws summarized, adding that he was pleased they did it because the decision allowed the county to move forward on a number of permitting issues.
“It’s been very clear from the start that it would be difficult to get the initiating governments—that is, the tribes, the City of Bellingham, Public Utility District, and Whatcom County—and the Planning Unit to come together on a unanimous consensus on a very contentious issue related to water rights.
“My sense is that the initiating governments themselves were not going to come to consensus on all of the issues” by the deadline, he admitted, let alone the Planning Unit.
Of course, all of this comes down to the responsible government under GMA—the county—deferring and delaying the hard decisions about planning, for which the county is held by the state as having ultimate authority.
In their preamble to the 1990 law, the Legislature sketched the challenges of GMA: “Uncoordinated and unplanned growth, together with a lack of common goals expressing the public’s interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety and high quality of life enjoyed by residents of this state.”
Former County Council member Carl Weimer steadfastly believed years of noncompliance with the spirit of these goals might have been avoided if county planners and policymakers had simply sat down with petitioners and tried to address their finite and reasonable concerns.
“There is a huge difference,” he commented from a distance on the recent order, “between being legally compliant with an Act and embracing the vision and spirit of it.”