Whatcom County breaks off settlement talks in water dispute

THE BELLINGHAM HERALDJuly 2, 2014 

Whatcom County officials are no longer trying to settle with environmentalists who claim the county is not adequately protecting the water supply.

Negotiations over the county's failure to balance rural development with the health of nearby salmon habitat were unproductive, the officials said, and it appears the outcome of that dispute will be decided by state courts.

The state Growth Management Hearings Board in June 2013 sided with the litigants challenging the county, ruling that the county isn't doing enough to protect flow levels in salmon streams, in part because it had allowed rural wells to proliferate unchecked. Wells that tap into groundwater could deplete fish-bearing streams.

The overall case is much more wide-ranging than that and includes challenges to the county's efforts to reduce water pollution. People on both sides of the case said agreement could still be reached on the less contentious issue of protecting water quality.

County attorney Karen Frakes sent an email June 17 to attorneys for the anti-sprawl group Futurewise and the four citizens challenging what they say are the county's inadequate restrictions on rural growth.

"At the direction of the County Council, I am writing to let you know that the county will not be participating in further settlement negotiations regarding water quantity," Frakes wrote. "While there still may be room for future discussion on the water quality issue, it is the county's view that it is not in its best interest to continue discussing the quantity issue."

Council members had expressed optimism over settling the water-quality issues. Futurewise sent a settlement proposal to the county on March 25 that was generally well received by council members. Options detailed in Futurewise's letter included improving stormwater control and requiring professional inspections of septic systems in rural areas.

"Those topics I'm definitely willing to explore, and settlement negotiations on those topics might have yielded results," council member Ken Mann said.

No meetings to negotiate a water quality agreement are scheduled.

On the thornier issue of water quantity, the council was concerned mainly that both the litigants and the Hearings Board were asking the county to decide whether to allow individual rural wells. That's the state's jurisdiction, Mann said, and infringing on that territory opens the county to lawsuits from property owners.

"There was a little bit of evolution in their settlement proposal, from the Hearings Board's ruling, but (their proposal) was still requiring that the county step in and usurp the state Department of Ecology's role, and to surpass state law," Mann said. "When it comes to water, counties are not going to take over for Ecology or reinterpret state law."

The litigants still have a valid point, Mann added. Water availability is a serious problem that needs to be addressed. Not only are rural well owners involved, and tribes on behalf of salmon, but also farmers, industries, cities and small water districts.

"We need to sort out our water allocation and water rights situation in Whatcom County," Mann said.

Jean Melious, the attorney for the four citizens (Eric Hirst, Wendy Harris, David Stalheim and Laura Leigh Brakke) had little to say about the county halting negotiations over water quantity.

"I don't know anything more about the county's reasons for ending negotiations than what's explained in that email," Melious said.

Tim Trohimovich, director of planning and law for Futurewise in Seattle, said he wouldn't answer questions about the substance of the negotiations.

"I would just say that we are still talking to the county" on issues unrelated to water quantity, Trohimovich said.

In a June 18 email to all parties involved, council Chairman Carl Weimer said he thought there would have been value in continuing the talks - a viewpoint not shared by the majority of the council.

"I have again been reminded I am part of a democracy," Weimer wrote.

Reach RALPH SCHWARTZ at ralph.schwartz@bellinghamherald.com or call 715-2298.

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