Sunday, July 20, 2014

Whatcom Rural Element: Water Quality Struggles

I have periodically posted on Whatcom County's long and complex struggles with rural planning and the Growth Management Act - long and wonky and local issues that shape the landscape. Whatcom County is just one county, but being local I know the GMA planning here better than elsewhere.

Whatcom County lost on water quality and water quantity issues on appeals before the Growth Hearings Board last year.  The County has appealed the Boards rulings on water quality and quantity planning to the State Court of Appeals. There are hints that a settlement may be reached on water quality, but not on water quantity. This post discusses the water quality issue; quantity is saved for another day.

The Hearings Board summed up the case on the County's rural plan water quality component:

"The County policies and development regulations either do not contain specific measures to protect water quality, or are limited to critical areas, urban areas or watershed overlay areas, and do not apply throughout the rural area. Indeed, although the County’s Comprehensive Plan contains policy statements about controlling or reducing water pollution, the implementing regulations have not done so, thus making the Comprehensive Plan inconsistent with the development regulations."

The Board referenced a number of studies and reports on water quality that were referenced by the appellants as examples of water quality problems and the failure of the County protections. To be honest, I found the Board ruling muddled when it came to the science rationale for the ruling. If you are looking for water quality science brilliance, it will not be found in this ruling. In regards to legal framework, the Board is making a clear statement that the GMA planning needs to consider Clean Water Act protections by arguing that growth planning is a fundamental aspect of accomplishing clean water goals in a cost effective and fair manner. The legal aspect will either be up to the judgment of the Court of Appeals or will be settled ahead of time. My read on the legal aspects is that the Board and those that appealed the County plan are on good legal footing - muddled science and references aside.

Once I got past the science part, the Hearings Board ruling provides fairly clear direction on water quality issues that are fairly simple fixes. One has to do with septic rules and the other is associated with stormwater. 

Septic Rules

The board notes County Policy 2DD-2.C.2 is to minimize the adverse effects of discharges from on-site sewage systems on ground and surface waters. This policy is implemented through Whatcom County Code (WCC) 24.05 with the purpose of protecting public health by minimizing public exposure to sewage. The code allows private homeowners to inspect their own septic systems if they meet certain requirements. The County currently allows homeowners to inspect their own onsite septic tanks in some Rural Areas. The County requires professional inspections of onsite septic systems only in the Lake Whatcom and Drayton Harbor watersheds - Lake Whatcom is a drinking water source and Drayton Harbor is a shell fish growing area. Petitioners argue the self-inspection program (as shown in Exhibit R-128) reveals that of the few homeowners who self-inspect, only 7.8% reported failure…compared to the 40.4% of professional inspections which report failure. Petitioners point out the self-inspection program for septic tanks in the rural area does not have the same compliance rates as the County documents from professionally inspected tanks in the Lake Whatcom and Drayton Harbor watersheds. The Board found that the 2010 WRIA 1 State of the Watershed Report lists malfunctioning on-site septic systems as a potential cause of water quality failures in three of the County’s seven watershed areas. The Board finds other studies shown above document water quality contamination from faulty septic systems. The Board is led to conclude the current development regulation does not protect water quality in Whatcom County’s rural areas.

Pretty clear that the Board thinks the County needs to drop the voluntary system as it appears to not be working. The volunteer approach has been the pet scheme of Council Member Barbara Brenner, and based on experience a pet scheme she will greatly resist changing. 

Stormwater

The Board notes Policy 2DD-2.C.3.is to Preserve and protect unique and important water resources through development standards in WCC 20.71 Water Resource Protection Overlay District, adopted herein by reference. WCC 20.71.021, the water resource protection overlay district, only applies to a portion of the county’s rural area: Lake Whatcom, Lake Samish, and Lake Padden Watersheds.  The Board notes that "Policy 2DD-2.C.3 does create measures to limit development to protect water resources in these three lake areas. However, no measures exist to limit development to protect water resources in the remaining portions of the County’s Rural Area. Thus, the County does not have measures to satisfy the requirements in RCW 36.70A.070(5)(c)(iv)". 
In particular the Board noted that "Ecology’s stormwater manual only applies to urbanized areas and not to the remainder of the County’s Rural Area. The Board finds Policy 2DD-2.C.4, which adopts by reference more restrictive stormwater management regulations, does not apply to the County’s entire Rural Area and thus, the County’s Stormwater Manual does not provide measures to protect groundwater throughout the County’s Rural Area. In addition, references to Title 20 Zoning in Policy 2DD-2.C.4 inadequately address stormwater because, even though it restricts lot coverage to 20%, the definition of lot coverage is restricted to structures and combination of structures and does not include all impervious surfaces such as driveways, parking lots, or other covered areas which create stormwater runoff."

The adoption of the Ecology Stormwater Manual for Western Washington would be a rather simple fix that would be highly defensible and accomplishes rural development utilizing full dispersion techniques and other low impact approaches that protect water quality with the seal of approval of Ecology. The current County approach is confusing people.

Adopting the Ecology manual may also allow the County to avoid the constant demand by Futurewise for retaining trees. Nothing against tree retention, but I don't like crossing up tree retention purposes. Where tree retention is important for stormwater quality, they should be protected for that purpose via stormwater regulations. The Ecology manual gets to that issue. If tree retention is for habitat, it should be embedded in the habitat regulations.

Not Relevant 

I was concerned about some rationale in the Boards ruling. One particular the Board discussion that left me confused as to its purpose was a study done by the Washington State Department of Ecology regarding nitrate contamination in Sumas-Blaine Aquifer. The Board provided no direction on this matter not did the Board recognize the level of effort the county has put into nitrate problems.

"A 2012 Department of Ecology report on nitrate contamination for wells in the Sumas-Blaine Aquifer states 29% of wells in northwestern Whatcom County exceeded maximum nitrate contamination levels and 14% of wells had more than double the maximum allowed rate of contamination. Thirty-six percent (36%) of shallow wells (less than 40 feet in depth) exceed allowable nitrate contamination levels, while 20% of deeper wells also exceed the standard. Ecology’s report documents the percentage nitrate contribution from various sources and states the Sumas-Blaine Aquifer is especially vulnerable to contamination from overlying land uses. Ecology recommends seven steps the County could take to address aquifer nitrate contamination."

The nitrate issue is almost exclusively an issue of agricultural practices over the aquifer on both the U.S. and Canadian side of the border (Ecology publication is here). The seven steps were not addressed specifically to Whatcom County and many of the steps area the responsibility of other agencies and governments. The suggested steps that do fall within County jurisdiction have in fact been taken by the county. The County has regulations regarding manure applications, farm plans, and water testing as well as educational programs. There could be some debate regarding funding and enforcement.

Another area of discussion was specific to flashiness of stream flows on Bertrand Creek in north Whatcom County due to development. The implication of the discussion was that county development rules were not adequate to protect from flashy stream flows on Bertrand Creek. Not sure it is fair to blame the County about the development impacts given that the development has been mostly been in Canada within the headwaters of the stream with most of the Whatcom County portion of the drainage in agricultural zoning.

The County is faced with some difficult challenges in the Bertrand watershed due to over use of groundwater and stream flows, but that is a whole other story.  

1 comment:

Geoffrey Middaugh said...

Excellent comments. First, I found the "science" confusing also. Legal opinions don't get a peer review. (Science is a process, not a conclusion). Having said that, it's better than nothing. Secondly, which Ecology Manual are you referring too? The 2012 PSP LID manual is an excellent, scientifically current, reference for getting at the ecological functions that trees support, rather than simply "maximize tree stems" in a watershed. Trees are the proxy for the services they perform, and the LID gets at this issue.