Whatcom County's hearing examiner rejected a proposed 45-home development near Lake Samish, citing concerns over pulling water from the lake to serve the houses.
Development of the land, near Summerland Road and West Lake Samish Drive, has been planned for 20 years.
The hearing examiner rarely outright rejects subdivisions. In his ruling, Hearing Examiner Michael Bobbink said he was rejecting it because the applicants haven't shown they can meet a condition of a state Department of Ecology permit to withdraw water from the lake. The condition says they can do so only if the volume of water flowing from the lake into Friday Creek remains at least two cubic feet per second. In the summertime, the volume often drops below that level, posing threats to fish, he said.
"The failure to establish, after 20 years, appropriate provisions for potable water for the subdivision requires that the preliminary subdivision approval application be denied by the hearing examiner," he wrote.
Developer Derek Stebner has filed an appeal of the decision that will go to the County Council, said Carole Magner, coordinator for the hearing examiner's office.
Opponents of the project liked Bobbink's decision.
"Our group is very pleased that the hearing examiner gave weight to the Department of Fish and Wildlife concerns about migrating endangered species in Friday Creek," said attorney Tom Ehrlichman, who represents four opponents of the project. "The water quality and water quantity in Lake Samish are critical to the survival of the listed steelhead under the Endangered Species Act."
He represents Wendy Harris, Shane Roth, Eric Hirst and Sue Brown. A separate group called Concerned Neighbors of Lake Samish also fought the project.
Attorney Brad Swanson, who represents Stebner, didn't return calls seeking comment for this article.
Steelhead enter the lake from Friday Creek and spawn in small tributaries feeding into the lake, Bobbink wrote in his decision. Friday Creek has multiple species of salmon, and there are indications bull trout, an endangered fish, also use it, he wrote. The lake has a healthy kokanee population.
Friday Creek leaves the lake at its southern end and eventually connects to the Samish River.
The Lake Samish watershed currently has 487 homes, and more than 1,000 people rely on the lake as their primary drinking water source, Bobbink wrote.
The Ecology permit effectively required that a water-augmentation program be established to ensure the water flowing into the creek doesn't drop below the minimum. Despite installation of a dam structure and clearing of logs, debris and beaver dams in the creek, it often dips below the minimum, he wrote.
Work could be done to ensure the dam works better to store water for release during dry summer months, he wrote, but it's not clear whether permits would be approved for the work, even if there were an entity with funding and legal rights to undertake it.
An engineer working for Stebner suggested they could install a water meter to monitor the creek level, and he said the eventual residents could pay into a fund for maintenance of the dam, Bobbink wrote, but they haven't addressed the fact that the current system fails to meet the minimum water-flow standards.
Meanwhile, county documents say Stebner defaulted on a $2 million loan from Dennis Wise, and an auction has been scheduled to sell one of the properties related to the development. The land set for a Sept. 7, 2012, auction is a waterfront parcel where Stebner proposed drawing water from the lake before pumping it to the 45-home subdivision. As of the end of May, he owed Wise $189,000, according to a May 20 notice of sale.
Stebner has sought to divide the parcel into four home lots, Bobbink wrote.
READ THE DECISION
Click here to read the hearing examiner's decision on the proposed Sleepy Hollow subdivision, a 45-home development near Lake Samish.