Saturday, April 12, 2014

Taking on Big Coal

The first battle against Big Coal's illegal clearing of 9.1 acres of forest that impacted 3.92 acres of wetlands and damaged a known archaeological site is set for hearing April 23rd at 1:35 p.m. at the County Courthouse Council Chambers.

It is David vs. Goliath "battling" (with words) before the Whatcom County Hearing Examiner.

The illegal clearing (in pictures) is shown below.
Carl Weimer took this picture of the clearing in July 2011 while walking his dog.

Here is a picture taken in April 2014 from approximately the same location as Carl's 2011 photo. Pacific International Terminals, Inc. has planted new trees to address their forest practice violation, but their planting scheme maintains a clear path to continue their geotechnical investigations for the coal port. 
The stakes in this appeal could be huge. If successful, the County would be required to enact a six-year development moratorium on the property proposed for the coal port, and suspend review of the application until the end of six years. The moratorium could be lifted only after a public hearing that demonstrates the violations are cured.

Big coal doesn't like the fact that their project might get suspended, or that their violations would be subject to public input. So, Pacific International Terminal's, Inc. have "lawyered" up against this citizen appeal. Their first attack on my appeal is to file a motion to dismiss, arguing that a citizen that lives in Bellingham does not have "standing" to file the appeal. 

The lawyers attempt to limit standing has never been raised in an appeal before the Whatcom County Hearing Examiner. In fact, Whatcom County's system for appealing zoning and critical area decisions only require you to be a "person". The coal port developers attempt at limiting appeals is just another way that they wish to exert undue influence on their illegal clearing.

If you wish to voice your opinion on Pacific International Terminal's attempt to dismiss this appeal, attend the hearing or send your comments. The Hearing Examiner required a legal notice to be published that said the hearing is an "open record" and allows you to "appear at hearing."  You can also mail your comments to the Hearing Examiner at 311 Grand Avenue, Bellingham, WA 98225 before April 23rd.

For those of you that enjoy reading legal arguments, here are the two briefs I submitted:

Tuesday, April 1, 2014

Water Wars Forever

As our loyal readers know, Whatcom County's rural and agricultural areas can accommodate enough new houses to take care of the County's population growth for the next 25 years.  Not one new house or apartment needs to be built in a city -- the County's zoning allows all the new houses anybody could need to be built in rural and ag land.  

And you know that the rural and ag areas don't have water to spare.   Most of the basins in Whatcom County are closed to further withdrawals, but that hasn't affected the County's decision to allow all those new houses to be built, tapping groundwater that will not be available to farmers or to fish.

And you know that the Growth Management Hearings Board has found that the County needs to protect water quality and quantity.  As a result, the County is under a legal compliance obligation; it is supposed to be working towards compliance with the Board's order.  That's the law. 

And you know that the County has the option of improving its water quality and quantity planning to comply with the Board's order. 

Instead, the County Council just voted to spend $40,000 more taxpayer-provided dollars to keep fighting in court.  

And today, in a compliance hearing before the Growth Management Hearings Board (this is a public hearing, so I'm not telling any tales), the County's attorney stated that the "County does not intend to take any further legislative action without guidance by the court."

So much for following the law!

So much for protecting water quality and quantity!

So much for all of those campaign promises NOT to keep funding Seattle attorneys to fight against GMA compliance!  I hope that We the Taxpayers are prepared for many more requests for many more tens and hundreds of thousands of dollars, because this Council apparently does not see a need to end the old Council's GMA battles any time soon.

I'm very disappointed as a citizen.  But as an advocate -- well, nobody ever promised us a rose garden, so on we go. 

Sunday, March 16, 2014

Whatcom County Leadership Needed to Protect Water Resources and Agricultural Land

The League of Women Voters’ March 15th session on water resources focused on “solutions.”

After the four panel members (Jeremy Freimund, Lumm Water Resources Manager; Hanry Bierlink, representing the Whatcom Agricultural District; George Boggs, from Whatcom Conservation District; and Ann Wessel, from the Department of Ecology) finished their remarks,  the League moderator noted that the speakers had used a whole host of words --  “litigate,” “ cooperate,” “be optimistic,” “be holistic” – and so forth.

As she ran through the string of words, I noticed that one word was missing:  “plan.”  Whatcom County has the obligation to plan to protect water resources.  Why didn’t anybody talk about that?

That absence came out in the subsequent conversation.  Henry Bierlink noted that water “is a land use issue, it’s an economic development issue, and everything else.”

Speaking of planning (or the lack thereof), the next question asked how much farm acreage the County is losing to development.  Henry responded that we lost a lot over the past 20 years, but now it’s plateaued and we have the 100,000 acres that the County Council has committed to protect.

I was standing in the back of the room, shaking my head vigorously – not because I doubt Henry’s word that more than 100,000 acres are currently being farmed in Whatcom County, but because the County has NOT protected 100,000 acres of agricultural land.  Only 88,000 acres are zoned for agriculture (don’t take my word for it – click here and see page 3).

On top of that, even the 88,000 acres that are zoned for agriculture are not permanently protected for agricultural use, as George Boggs emphasized.  The issue, he said is “what we can lose” – and this County has 4,000 development rights in prime agricultural land. 

Why does that matter?  As these lots are developed, they will withdraw some water, and in some places, that may be a problem.  But the bigger problem is the potential for incompatibility.

Unlike anywhere else that I know of, Whatcom County’s zoning allows residential buildings to be built right up to a farmer’s property line.  In fact, under some circumstances, a setback applies to farm buildings, which are constrained in their location in order to protect residential uses.  This is a formula for conflict.

As restrictions tighten on the use of pesticides and other chemicals (don’t take my word for it, click here),   the ever-increasing number of residential buildings in Ag areas will increasingly constrain farming.

Whatcom County has a chance to address this issue in its upcoming Comprehensive Plan update.  It could revise its zoning code and provide some protection to Ag uses.  As George Boggs noted, the issue of residential development in agricultural land is an issue of great urgency. And yet the County Council recently voted NOT to docket a measure that would put the County on the road to protecting the additional ag land that everybody agrees that we need. 

Is Whatcom County in the business of planning?  Reacting?  Merely defending the status quo? 

That leads us to the most profound statement on leadership of the session. Jeremy Freimund, the Lummi Nation’s water resource manager, described the “Lessons Learned” from his years of being in the thick of water resource litigation.  The main “lesson learned,” he said, is that politicians want to be able to say “”the judge made me do it.”

True leadership, as he pointed out, would be to stand up and admit that concessions are needed to get to a negotiated agreement.

I think that we elected a new County Council in hopes that there would be a welcome return to leadership. Perhaps this hope only extended as far as the review of the Gateway Pacific coal terminal, and perhaps we are all too jaded or too indifferent even to dream that Whatcom County will ever again engage in the kind of leadership needed to address our other tough problems.

Water problems.  Council Chair Carl Weimer recently proposed, and the Council recently adopted, a Water Action Plan.  This could and should be part of the solution.  Will it have any teeth?  Will the Council have the political will to buck the status quo? 

The protection of agricultural lands.  Will the County do what it takes?  Ken Mann has proposed a Transfer of Development Rights program to remove development rights from agricultural land.  Does the Council have the technical support, the money, and the backbone to make it work?  And if not, what is Plan B?  Is planning any part of Plan B?

As George Boggs put it, “if you want change, you need to clamor.”  

Saturday, February 15, 2014

The Empty Chair at the Water Resource Table

The League of Women Voters hosted an excellent panel this morning.  Five experienced, knowledgeable speakers discussed water resource problems and issues from a variety of perspectives.  The Center for New Media taped the forum, if you missed it (here’s the link). 

Every issue that the panel discussed had to do with the area of the County in which Whatcom County is the sole local general-purpose government – that is, the parts of the County that are not within cities.

There was no representative from Whatcom County.

I do not believe that this reflects a lack of foresight on the part of the League of Women Voters.  Rather, it reflects how far Whatcom County is from playing a leadership role in water issues.

Over the past few weeks, I’ve been asking people with various types of involvement in County water issues if they can tell me who the County’s overall water resource experts are.  (When I say “overall,” I mean “outside of Lake Whatcom.”)  The unanimous answer, from folks in all walks of life and with varied involvement in water issues, has been:

This is quite a recent development that reflects several strands of the County's dominant belief system over the past few years – a lack of a grounding in science (We have more salmon than we know what to do with!  There is no water problem!), opposition to the County’s environmental mandate and obligations (The state can't tell us what to do!  Leave water issues to Ecology!), and a sometimes raucously anti-government ideology (Water law is a communist plot to take away property rights!). As the County has increasingly limited its role to development services, its capacity to address natural resource issues has diminished to the point of -- well, to the point of the answer above.

But without dwelling on the past, the question is:  moving forward, should our most important local general purpose government, Whatcom County, take a leadership role in resolving water resource issues? Or at least be an active participant?

The reaction to a resolution proposed by Council Member Carl Weimer, which asks the County and its partners to develop a “water action plan,” will help to provide the answers to these questions. 

Everybody on the water resources panel seemed to think that it’s a good idea.  Perhaps, if other people support it too, the County will develop the capacity that it needs to be part of the solution. 

And then, perhaps, the League of Women Voters will be able to hold a Water Resources Panel that focuses on Whatcom County's intelligent, proactive approach to addressing its water resource challenges.

Sunday, February 9, 2014

Whose County Is It, Anyway?

Sunlight is the best disinfectant.

All right, Pacific International Terminal, Bill Lyne, Gordon Thomas Honeywell, and all you bigwigs who play in the big leagues.  We get it.  You’re big and important, and Whatcom County is small and insignificant.  We are Hicksville, way up in corner of the state, with hardly any people and no significance to your great big important world. Well, other than the fact that our marine shoreline could support a deepwater port that you need for North America's largest coal export terminal. 

But really.  You’ve seen the movie "Braveheart,” right?  You may see us as the rebels with our faces painted blue, beyond the pale of civilization up here in the far reaches of Puget Sound, but do you really expect us to surrender our County to you without a fight?

Let me repeat a fact that sometimes seems to get lost the discussion:  Pacific International Terminal has proposed to locate North America’s largest export terminal in our County. This is one of the biggest projects in the country.  The entire U.S. of A.  Right here in Whatcom County.

When an enormous project descends on a small community, it is not unusual for the enormous project to take over the small community.  After all, project proponents need to make sure that local concerns don’t get in the way.  They have a lot at stake, and the last thing that they need is for the local yokels to putz about, putting big plans at risk with their petty concerns.  And the big guys have the know-how and the wherewithal to keep the locals out of the gears of the machinery.  Right?   

Well, maybe not.  Not necessarily.  That is, if Hicksville really turns out to be Pretty Smart Community With a Bunch of Active, Interested Citizens.

Last week, County Council Chair Carl Weimer proposed a minor amendment to the County Code.  The Code already states that contracts “entered into by the county” (that means the County Executive) over $10,000 must be reviewed and approved by the County Council.  The Council's approval authority currently excludes “pass-through moneys,” or contracts where an applicant reimburses the County.  The Executive may approve such contracts – even if the contracts are in the millions of dollars – without any Council review.

Mr. Weimer’s amendment simply states that contracts “which involve externally funded pass-through moneys” should be approved by the County Council.   That’s all it does.  It eliminates a loophole in the normal system of checks and balances that provides oversight of large contracts.

Why did this simple amendment result in this splenetic three-page bloviation from the lawyer for Pacific International Terminal, the applicant for the Gateway Pacific coal terminal? 

 Why would PIT, a project applicant, insert itself into a matter that’s strictly local, relating to the process for approving a contract?

If everything is on the up-and-up, why would the applicant care WHO reviews the contract, or HOW MANY people review the contract?  

In short, why is PIT afraid of transparency?

According to an article in the Bellingham Herald, Council member Sam Crawford believes that transparency about PIT’s “pass-through” contract would be harmful because citizens aren’t smart enough to understand the role of contracts.  Oversight of pass-through contracts “could create the false impression that the public will be able to convince the council to halt the process over a small change. ‘I think that's too much and that's unnecessary,’ Crawford said of the proposed change to county law. ‘The public may ultimately end up disappointed.’"

So Mr. Crawford and the coal terminal folks just want to protect us from ourselves, to keep us from being “disappointed.”  That’s one possible explanation.  If you agree that the County needs to act in loco parentis, or in the role of a parent that needs to protect its child-like citizens from information, then this makes sense.  I suppose. If that's how you view the role of government.

A letter that David Stalheim wrote to the County Council last week may provide another explanation.     From the information that’s available in public records, it appears that the "pass through" contract doesn't work.  

The County has not actually billed PIT for much time spent on its application.  The record indicates that no county attorney has reviewed any contracts or other documents, the Finance Department has not billed for any time involved in processing contracts or paying bills, and the Public Works Department – which is responsible for stormwater, water quality, and transportation impacts – has spent less than five hours on North American’s largest coal terminal.

What does that mean?  It could just mean that the County’s not very good about keeping time, and that this record-keeping failure means that we the taxpayers are subsidizing PIT.  That’s not very appealing.  

Or it could mean that the County is just rubber-stamping everything that PIT wants to have done, without actually reviewing it or raising any questions.  That is even less appealing. 

Sunlight, which Supreme Court Justice Louis Brandeis called "the best disinfectant," would reveal whether or not there is a reason for concern.  And sunlight, in the form of public transparency, could not conceivably hurt anyone involved in the contract – assuming that the contract is shipshape, aboveboard, well monitored, and in the public interest.    

So, if you think that it ought to be OK for the public and the County Council to see what’s happening in the contract between PIT and Whatcom County, please write to the County Council and support Council Chair Weimer’s resolution. The Council's e-mail address is

Or attend the Council meeting on Tuesday, February 11th.  The Finance and Administrative Services Committee will consider the proposed amendment at 11:00 (the public may or may not be allowed to speak, but you can at least listen to your policy-makers debate the issue), and open session will start shortly after the meeting begins at 7:00 in the eveningThe agenda is here 

If you think that PIT knows best how our County should be run, then by all means, support PIT.

Either way, we’ll know whose County this is.

Friday, January 31, 2014

Talking to the Tea Party About Water

Sumas River.  Photograph by Lee First.
Tea Party activist and KGMI radio personality Kris Halterman posted a blog about last Tuesday’s County Council meeting.  The short blog contained the usual misstatements and inaccuracies about our water case, and added an assertion that we had failed to respond to Tea Party talking points. 
In fact, we responded to two sets of Tea Party talking points:  those posted on the Tea Party web site and those posted on Ms. Halterman’s KGMI web site.  Our response is here.

And now I’d like to ask the Tea Party to respond to the information below, all of which is based on state agency reports and the County’s planning documents. 

The only responses I’ve heard so far are (1) bad city people want to warehouse rural people in concrete jungles, to live like rats in mazes, and (2) the County should spend millions of dollars to hire Tea Party-approved scientists to redo the work of agencies, in order to reach Tea Party-approved results.

Argument (1), promoted by state Senator Doug Ericksen on Ms. Halterman’s radio show, is an effort to create animosity and division in order to divert attention from the facts. It does not, of course, address Whatcom County’s situation.

Argument (2) assumes that Whatcom County’s desire to assuage the Tea Party knows no temporal, monetary, or legal limits.  While the County’s actions over the past four years do support this assumption, the voters who elected the Council majority appear to hope that the County will someday start to base its policies on facts and law.

If the Tea Party is willing to go beyond these two arguments, and to engage in the solution of the issues identified below based on fact and law, I’d be very interested to hear its proposals.

From (the Tea Party talking points are in italics, and our responses are in plain type):

 This case, and the issue generally, raises numerous important concerns:
If there are water quality and quantity problems, how have those been proven – to whom?
  • The WRIA 1 State of the Watershed report shows year-round or seasonally closed watersheds account for a large part of the County.  Ecology has found that average minimum instream flows in the mainstem and middle fork Nooksack River are not met an average of 100 days a year. 
  • Ecology’s Focus on Watershed Availability report states “Most water in the Nooksack watershed is already legally spoken for.”  Instream flows for WRIA 1 were established in 1985 and codified at WAC 173-501.  As a result of instream flow requirements, some of the water sources are closed year round to additional withdrawals and some are closed part of the year. 
  • In its 1999 Water Resource Plan, the County reported that a proliferation of rural residential exempt wells already created “difficulties for effective water resource management” by drawing down underlying aquifers and reducing groundwater recharge of streams.  Since the report was issued, more than 1,000 additional wells have been drilled in closed basins.
  • The link between stream flows and groundwater withdrawals in the shallow Whatcom aquifers is well documented.  A number of studies indicate that shallow aquifers of the County are responsible for approximately 70% of base stream flow. 
  • The Sumas-Blaine aquifer is the only readily available drinking water source for 27,000 rural residents of Whatcom County.  Nitrate contamination in the aquifer has been documented for over 40 years.  In a 2012 study, 29% of sampled wells failed to meet drinking water standards for nitrates, and 14% of wells had double the maximum allowed nitrate levels.
  • A 2012 Washington State Health Department study on fecal coliform pollution in Puget Sound ranked Drayton Harbor as the second-highest contaminated shellfish bed in Puget Sound.
  • Whatcom County has 77 impaired water bodies under the Clean Water Act’s Section 303(d) standard.  Of these, only 6 water bodies have been analyzed and have had standards established for Total Maximum Daily Loads (TMDLs). 
  • The County’s own Comprehensive Plan states:  “Surface and groundwater quality problems can be found in many areas of Whatcom County. . .There are significant legal limitation in obtaining water.  Management actions between and within jurisdictions are not always well coordinated or consistent. . .These problems and issues have already led to many impacts. . .includ[ing] health concerns associated with drinking contaminated water; fisheries depletion and closure of shellfish harvesting areas and other instream problems; a lack of adequate water storage and delivery systems to meet the requirements of growth and development; concerns with the availability of water to meet existing agricultural and public water supply demands; potential difficulties and additional costs associated with obtaining building permits and subdivision approvals; and other related increasing financial costs to the community.  Long-term resolution of the numerous, complex and changing water issues requires actions in many areas.”  
This evidence, and much more, was cited in the Growth Management Hearings Board’s decision."