Lake Whatcom Development Violates Growth Management Act

Virgina Watson has been a rural Whatcom County resident since 1982. She is a founding member and current president of the Squalicum Valley Community Association. SQVCA is dedicated to the protection and preservation of rural and resource lands, the Squalicum Valley Aquifer, and the Lake Whatcom Watershed.

Nineteen years ago the Washington State Legislature voted to approve the state’s Growth Management Act (GMA). The GMA prohibits the extension of urban services, specifically sewer service, outside of cities and their designated Urban Growth Areas. The GMA states: “Storm and sanitary services are prohibited [outside of urban growth areas], except to alleviate an existing health or environmental hazard.”

Whatcom County is allowing the Lake Whatcom Water & Sewer District (LWWSD) rather than the state law to determine where the district can legally provide sewer service. The county is deferring to the district and ignoring the GMA, the city of Bellingham and the Department of Ecology (DOE). The Whatcom County Hearing Examiner concluded that neither he nor the county has jurisdiction to grant the remedies the city seeks to prevent illegal sewer service to the proposed development known as North Shore Estates.

The hearing examiner’s conclusion suggests that the sewer service being sought is tantamount to a vested right to develop. The city of Bellingham is seeking a reversal of this decision in a petition for land use appeal under RCW CH 36.70C. The city opposed the district’s sewer extension throughout the planning process and was a party of record before the hearing examiner and the Whatcom County Council.

The proposed development is for 47.73 acres on North Shore Drive next to the Eagleridge development in the Lake Whatcom watershed. The Uy Family Limited Partnership LLC filed seven short plat applications for contiguous parcels at the site. Each short plat contains four home sites, and according to the Whatcom County Prosecutor’s Office these applications were vested in September 1999. The GMA was enacted in 1990 (See map on page 10).

This development poses significant environmental impacts, and the county as the lead State Environmental Policy Act (SEPA) agency required an environmental impact statement (EIS). The county’s final version was published in August of 2002. The final EIS does not discuss the proposed sewer connection; however, in the comments section of the draft EIS, the county SEPA official states: “No extension of sewer or water service is being requested for this proposal.”

In April 2003, the Uy Partnership requested water service from the city, rather than relying on community wells as stated in its applications and EIS. On April 12, 2004, the city of Bellingham, LWWSD and the Uy Partnership signed an interlocal water agreement for a water extension limiting the development to 28 building sites.

The developers then turned their attention to sewer services. The Uy Partnership signed a Developer Extension Agreement (DEA) with LWWSD on Dec 8, 2004, permitting them to construct 28 sewer connections with the collector line running along North Shore Drive. This DEA was valid for one year, unless renewed by the developer for an additional year.

The DEA stated: “The facilities shall be completed and accepted by the district within one (1) year of this agreement. An extension will be granted upon a written request for a period not to exceed one (1) additional year. If the facilities are not completed and accepted within two (2) years from the date below, then the developer’s rights under this DEA shall cease unless and until the District consents to the extension of the existing DEA and the developer pays the additional administrative, legal and engineering costs involved, and incorporates new design and/or construction standards, all as determined by the Board of Commissioners.” During the next two (2) years, the Uy partnership took no action on the sewer project, and the DEA lapsed no later than December 8, 2006.

After the 2004 DEA expired, LWWSD submitted its updated comprehensive sewer plan to the DOE for review and approval. This plan included a description of the North Shore Estates sewer extension, despite the Uy DEA for North Shore Estates having expired.

According to this plan: “The North Shore Estates DEA will extend public water and sewer approximately 5,000 feet each to serve 28 lots in a new, vested subdivision. These properties are located inside the District boundaries and outside the designated Urban Growth Area boundary. The extension will be comprised of a branch gravity sewer line to service the new lots that will discharge into the existing Eagleridge gravity sewer collection system and the North Shore Road interceptor. The property owner has entered into a DEA with the district whereby the owner becomes responsible for all design, construction, and inspection costs associated with the NEW branch sewer line. At the time the NEW line goes into operation, the District will be granted ownership of, and operation and maintenance responsibilities for all NEW sewer facilities association (sic) with the development.”

In February 2008, the DOE gave conditional approval to the plan exempting approval of any new extensions outside the urban growth area. Ecology’s response read in part:

“The draft of the LWWSD comprehensive Sewer Plan dated September 2007 submitted to the DOE is CONDITIONALLY APPROVED. The following conditions apply: “No new extensions as defined by WAC 173-240-020 (13) outside of Urban Growth Areas or Local Areas of More intense Rural Development approved by Whatcom County under CH 36.70A RCW are permitted under this conditional approval. Ecology will only consider approval of new extensions as a future addendum to the Comprehensive Sewer Plan if LWWSD demonstrates the proposed connections meet the following criterion: ‘Whatcom County has determined that the extension is consistent with its comprehensive plan under Ch. 36.70A RCW.’”

Despite this conditional approval, in March 2008, the LWWSD Board of commissioners authorized a new developer extension agreement with the Uy partnership for North Shore Estates. The DOE notified the district that this action violated the conditional approval. Ecology wrote: “The District’s approval of the second DEA is inconsistent with the terms of Ecology’s 2008 conditional approval. As the original DEA (2004) issued to North Shore Estates expired (2006) and a new DEA (2008) was not executed prior to Ecology’s conditional approval of the District’s plan, the terms of Ecology’s conditional approval apply.”

The district did not heed Ecology’s letter. Bill Hunter, assistant manager for the district, in his response to Ecology asked: “Does it become a new extension if a developer forgets to renew his DEA? The word NEW appears in the description of the proposed sewer service in the District’s Comprehensive Sewer Plan.”

With the DOE and the city of Bellingham opposing the sewer extension, the district turned to the county for its decision on the legality of the extension. In an undated letter to the district, Royce Buckingham, civil deputy prosecutor, explained the county’s position on the sewer extension. His letter reads in part: “This letter is intended to clarify the County’s position regarding extension of sewer services to the North Shore Estates development outside of the UGA.”

The letter went on and in it the county noted that the original DEA lapsed, and that the new agreement was subject to Ecology’s conditional approval. Under the current County Comprehensive Plan, the sewer extension is not allowed. The letter also stated:

“Extension of a sewer line for a new land division does not constitute an emergency or current health hazard. As such, North Shore Estate’s new agreement under the proposed LWWSD plan would not be consistent with Whatcom County’s current comprehensive plan. The county did not declare the new DEA invalid. Instead it gave the issue back to the District. Whatcom County must honor the representation of the relevant agency/agencies regarding whether LWWSD has a valid current DEA with North Shore Estates. The sewer district, in particular, must affirmatively assure Whatcom County that they will serve and have the legal right to do so. Should the DEA be found invalid, the vested applicant, North Shore Estates, could consider on-site sewage disposal and could contact the Health Dept to see whether on-site Sewage disposal can be accomplished.”

The city of Bellingham appealed this administrative determination before the Whatcom County Hearing Examiner in December 2008.

The county hearing examiner concluded that neither Whatcom County nor he has jurisdiction to decide whether or not the new 2008 DEA between the district and the developer is legal, or to determine if the DEA between the district and the developer is a violation of the conditional approval of the sewer district’s 2007 comprehensive sewer plan imposed by the DOE, or if the DOE had the power to attach the condition to the plan.

The examiner concluded that the county’s prosecuting attorney’s letter of July 2008 correctly outlined the county’s position in regard to the issues raised by the DOE and the district related to the provision of sewer services to North Shore Estates, and he concluded the county’s requirement for disposal of sanitary waste (sewage) can be met by the developer through a connection to the sewer district’s trunk line as long as the sewer district is willing and able to allow such a connection.

The examiner also concluded that whether or not the county erred in its interpretation of its county comprehensive plan and land use ordinances under the GMA by allowing sewer hookups to North Shore Estates, it is too late for the city to raise the issue at this time. Lastly, the examiner concluded the developer has a vested right under RCW 58.17.033 to comply with the county’s requirements for handling sanitary waste through a connection to the district’s sewer trunk lines so long as the district is willing and able to provide the service. The County Council upheld the hearing examiner’s decision.

In August of 2008, developer Patrick Uy applied for a second Land Disturbance Permit (LDP) after allowing his first one to lapse. In a letter dated February 4, 2009, David Stalheim, head of Whatcom County’s Planning & Development Services, informed the applicant that this was considered a new application, and he was subject to all current rules and regulations for development in the watershed.

Uy filed an appeal with the county. This appeal was withdrawn after Royce Buckingham of the Whatcom County Prosecutor’s Office sent Uy’s law firm a letter stating the new LDP would not be subject to any of the conditions stated in Mr Stalheim’s administrative review except the seasonal window for construction in the watershed.

Since Whatcom County’s Comprehensive Plan is assumed to be consistent with the GMA, any interpretation of a development regulation that is inconsistent with the GMA must also be inconsistent with the Comprehensive Plan. The GMA expressly prohibits the extension of urban services, specifically sewer service, outside of cities and their designated Urban Growth Areas. Both the current and previous Whatcom County Comprehensive Plans contain language that prohibits the extension of sewer service outside of Urban Growth Areas.

LWWSD is an entity whose survival, success, and profitability are dependent upon providing new service hookups. It is unreasonable to expect unbiased decisions from them with regard to service expansion. By allowing LWSSD to determine whether or not it can provide sewer service outside of Bellingham’s UGA, Whatcom County is remiss in its duty to provide governmental regulation where it is needed. At best, Whatcom County is remiss in its duties to uphold and enforce development regulations meant to protect rural lands, and at worst, it is complicit in aiding and abetting LWWSD in its efforts to circumvent these regulations and service new development in the Lake Whatcom Watershed. This is a disservice to the 96,000 county residents who rely upon this already impaired reservoir.

The people of Bellingham deserve more consideration and better leadership from Whatcom County. Their county must work with rather than against their city in its efforts to protect their reservoir. The Whatcom County Executive needs to recognize that city residents comprise 40 percent of his constituency. The challenges of watershed protection and rehabilitation require cooperation between the county and the city rather than a protracted and expensive legal dispute.

Bellingham will have its day in Superior Court. As of this writing, it is scheduled for October 9, 2009. §