The Raucous Caucus
Wednesday, April 17, 2019
THE RAUCOUS CAUCUS: The searing folly of water resource planning in Whatcom County came again into focus this month as the state Dept. of Ecology announced the first comment period on a new streamflow rule that will attempt to accommodate rural growth and protect water supply needs for fish in the Nooksack watershed. The watershed includes most of western Whatcom County and a small portion of Skagit County.
After 25 years of juggling and kicking this can, trying to balance the ecological with the economic is likely impossible.
Ecology will host three open houses to discuss the rule-making ahead of a formal rule proposal planned for later this year. This rule-making is tied to the state’s 2018 streamflow-restoration law that requires planning for the impacts of future water consumption by new wells for homes built in the watershed. The transparency of these public meetings is essential, and made indispensable by the abysmal failure and cratering of the group of stakeholders charged with supporting a plan to come to some consensus—the Planning Unit of the Nooksack Water Resources Inventory Area (WRIA-1).
County Council learned in January the long-comatose and fractious (and poorly named) Planning Unit could form an opinion on no particular plan by the deadline imposed by the state’s Senate Bill ESSB 6091, the so-called “Hirst fix.” The 2018 bill requires Ecology to work with the responsible initiating governments and the planning unit in WRIA-1 to review existing watershed plans and identify the potential impacts of exempt well use and projects necessary to improve watershed health.
After a year of dithering, 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, as we’ve noted before, there is no agreement on that point, either.
It’s important to note that some internal caucuses of the Planning Unit are well served by never arriving at a consensus or decision or plan on these topics—since each of those may one day impose some cost or restriction upon them.
That is the critical point of failure that arrives from a process that requires unlimited buy-in and near universal support by parties who cannot agree on fundamental 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,” County Executive Jack Louws reported to the Council in January.
“The initiating governments themselves were not going to come to consensus on all of the issues by the deadline, let alone the Planning Unit,” he said.
The process requires consensus by those governments, and majority consent by the (often deadlocked and quarrelsome) planning unit.
As their deadline neared and passed, any cohesion left on the Planning Unit flew apart, with the individual caucuses waving about their own recommendations and reports to Ecology rather than some unified proposal. The disintegration leaves Ecology somewhat at a loss to parse the confluence of interests in the Nooksack watershed and—ironically and paradoxically—fully in control of the ultimate decisions since they did not receive any cohesive backstop from those interests. This utterly defeats the concept of “local control” that is supposedly at the heart of planning under the state’s Growth Management Act.
Of course, that’s been the problem all along with watershed planning for the Nooksack.
The county boneheadedly relied on an ancient and decomposing state rule for Nooksack stream flows rather than performing their own independent assessment that attempted to match growth with sufficient resources (like water) that can support growth. The result has oversubscribed residential water use in several impaired basins of the Nooksack. The state Supreme Court kicked Whatcom County sharply in the temple for that in their 2016 Hirst decision.
“The county merely follows the Department of Ecology’s ’Nooksack Rule,’” justices observed. “It assumes there is an adequate supply to provide water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt appropriations. This results in the county’s granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow.”
Justices affirmed, “GMA requires counties to make determinations of water availability. The language placing this burden on the county or local government is clear, consistent, and unambiguous throughout the Act. …This language clearly requires the county legislative authority—and not Ecology—to take planning action, including adopting a comprehensive plan.”
Despite this clear instruction from the high court, the county’s legislative authority continues to shove this ultimate responsibility on to other parties—whether Ecology, or the citizen caucuses of the WRIA-1 Planning Unit.
“There are so many boards and teams that really don’t seem to have authority that now have authority,” Council member Barbara Brenner cried at the January meeting. “There were too many other committees set up.”
Yes; because you in particular insisted at the outset on including parties that have no authority in watershed planning and giving them veto power over the plan—including impassioned support for the individual residential well owners and land speculators who hold no water right.
The WRIA was formed by the initiating governments described by Louws, and they—as the WRIA-1 Watershed Management Board—are the only entities (county foremost) with the standing, the staffing and resources, and legal authority to make final planning decisions about water resources in Whatcom County.
Local control loses all meaning when the responsible authority defers its responsibility and authority for decisions. That’s the Hirst problem in a nutshell.