Whatcom County is not doing enough to protect water quality in Lake Whatcom, and developers remain barred from thousands of acres of rural land because the county has not yet complied with the state's growth management law.
The County Council has six months to approve another ordinance governing development on rural land and protections for the lake that supplies drinking water to about 100,000 residents.
The Growth Management Hearings Board released a 93-page order on Friday, Jan. 4, outlining ways the county fell short on its most recent attempt to comply with the state Growth Management Act.
Progress has been made. Of the 24 rules found to be out of compliance in the board's January 2012 ruling, eight remain, according to senior planner Gary Davis.
As a result of the rules that are still "invalid," development remains at a standstill on a significant portion of rural land in the county, said Tim Trohimovich, director of planning and law at Futurewise. The group is among those challenging the county's rural growth rules, or rural element.
"There's significant progress that's been made, but there's still thousands of acres of land under invalidity," Trohimovich said.
The county has sought the approval of the hearings board on the rural element since 2005. The next ordinance, due July 3, will be the county's fourth try. Alternatively, the county could appeal the hearings board order and bring the case to superior court.
The council voted last month to spend up to $50,000 for outside attorneys to cover the cost of either fighting or negotiating the board's decisions.
Council member Sam Crawford said it seemed "more and more likely as time goes on" that the dispute would be taken to court. The council will meet behind closed doors Tuesday, Jan. 15, to discuss the hearing board's order, council Chairwoman Kathy Kershner said.
Futurewise will offer to help county officials rewrite the rural element ordinance, Trohimovich said. Kershner said she won't let the Seattle-based anti-sprawl group get its way.
"I am going to continue to work on behalf of our rural community, to make sure they're not driven by Seattle-funded special interest groups," Kershner said.
One of the more daunting hurdles remaining is the requirement to better protect water quality in Lake Whatcom.
"The county's unsupported assertion that its regulations are adequate to provide the needed protection rings hollow," the board said in a January 2012 decision. "The current report on Lake Whatcom water quality demonstrates that the existing regulations have not protected Lake Whatcom."
Essentially, nothing has changed since a year ago. While some land around the lake was rezoned in the latest ordinance to reduce future residential density, no new measures were added to protect the lake, the board said.
"In my clients' view, the most pressing matter might be the need to protect Lake Whatcom," wrote Jean Melious, attorney for petitioners Eric Hirst, Laura Leigh Brakke, Wendy Harris and David Stalheim, in an email to The Bellingham Herald. "The county was supposed to adopt regulations ensuring zero phosphorus discharge ... by the end of 2011, but this effort has stalled."
Pete Kremen, then county executive, wrote in a March 10, 2011, letter to the Department of Ecology that the county would establish rules reducing phosphorus discharge as recommended by the state agency.
As a council member, Kremen now question's Ecology's recommendation of zero phosphorus discharge.
"I question whether zero discharge is actually attainable," Kremen said in an interview on Tuesday, Jan. 8. "All we can do is our best to try to significantly reduce the infiltration of phosphorus into the Lake Whatcom reservoir."
The county also failed to ensure a variety of rural housing densities, according to the board. Futurewise and Melious say the entire rural area between the outlying farms and the cities could be developed into a suburb of 5-acre lots.
This board decision especially concerns Crawford, who is opposed to wholesale "downzoning' to lower densities.
"Speaking for myself and I think the majority of the council, we would not want to go there," Crawford said.