In a ruling that could have significant impacts on land development in rural Whatcom County, a state board has ordered county officials to develop more restrictive regulations to protect water supplies in streams and under the ground.
The Growth Management Hearings Board found that the county's existing regulations are leaving wide areas of rural Whatcom County without adequate measures to protect the quality and quantity of water supplies. That threatens the rural character of these areas, and that character is supposed to be protected under the terms of the Washington Growth Management Act.
"The board is left with a firm and definite conviction that a mistake has been made," the board's ruling said in summarizing its review of county regulations.
The board also sent the county back to the drawing board on private septic system regulation, finding that the county's existing practice of allowing most homeowners to inspect their own systems "does not protect water quality in Whatcom County's rural areas."
That means the county could be pushed back toward regulations that require regular professional inspections of all septic systems. A majority of County Council members approved a self-inspection system for most areas after many homeowners objected to the cost of professional inspections.
The board considered the evidence and made its ruling in response to a legal challenge by four local citizens: Eric Hirst, Laura Lee Brakke, Wendy Harris and David Stalheim, represented by attorney Jean Melious. Futurewise, a land-use policy watchdog group, joined in that challenge.
The most dramatic impact of the board's Friday, June 7, ruling could be on the granting of building and subdivision permits for new homes in areas where the state already refuses to grant new permits for withdrawals from creeks.
Drilling new wells in those areas can further reduce the flow of water in problem creeks, but smaller wells for residences are exempt from state regulation. That allows people to go on building homes in those areas, because Whatcom County has no rules in place to ensure that nearby streams are protected when new wells are drilled.
The hearings board ruled that the county should be requiring developers and builders to show evidence that the new well water supply for a home or subdivision won't reduce the volume of water in already-threatened streams, before permits for buildings or subdivisions are granted.
There will be no immediate impact on county permit policies. In an email, attorney Melious said the county has six months to adopt policies that will satisfy the board that county land-use policies are adequate to protect water resources in rural areas.
Melious also complained that up to this point, the County Council has chosen to spend its money on legal battles over the Growth Management Act and the board that enforces it, instead of on developing regulations that comply with the state law.
"The County Council can commit taxpayers to paying some more tens and hundreds of thousands of dollars to keep its crusade against the Growth Management Hearings Board going, or it can use the same money to protect water resources," Melious said.
Will the county eventually be forced to adopt land-use policies that impose significant new development restrictions?
"I don't think there's anybody who knows the answer to that question," Whatcom County senior planner Gary Davis said.
Mark Personius, manager of the long-range planning division of Whatcom County Planning and Development Services, agreed that it's too soon to know for sure what impact the board's ruling will have. He acknowledged that taking the legally required steps to protect water resources will mean new restrictions on land use.
"At this point it's unknown yet how we respond to this in order to manage that growth better," Personius said. "Definitely it will change the landscape in rural areas."
The board's ruling listed a number of steps that the county could take to steer population growth away from rural areas where water is in short supply or would be threatened by increased runoff from development.
"It (the county) may reduce densities or intensities of uses, limit impervious services to maximize stream recharge, impose low-impact development standards throughout the rural area, require water conservation and reuse, or develop mitigation options," the board's ruling said. "It may direct growth to urban rather than rural areas."
The location of septic systems in Whatcom County was corrected June 11, 2013.