HomeMy WebLinkAboutord2016-048WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2016 - 309 _
CLEARANCES
Initial
Date
Date Received in Council Office
:Agenda Date
Assi gned to:
Originator
10/25/2016
10/25/2016
Council
Division Head:
,Dept. Head: L
Prosecutor. -
Purcltasin /Bud et:
Executive.
TITLE OF DOCUMENT.
Moratorium on applications & permits for permit- exempt wells for water supply
ATTACHMENTS:
Ordinance
SEPA review required? ( ) Yes ( ) NO
Should Clerk schedule a hearing ? ( X ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date:
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate.
Be clear in explaining the intent of the action.)
Emergency ordinance imposing a moratorium on the acceptance and processing of applications and permits for subdivisions, building permits, and
discretionary permits that rely on permit- exempt wells for water supply in closed basins.
i
COMMITTEE ACTION.•
COUNCIL ACTION.
10/25/2016: Adopted 6 -1, Brenner opposed,
Ord. 2016 -048. Public hearing to be held
i
at a later date
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
Number: Ord.2016 -048
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's website at: www.co.whatcom.wa.us /council.
_- ,. — -- -- - - - - -- _ - _
10 -24 -2016
PROPOSED BY:
INTRODUCTION DATE:
ORDINANCE NO. 2016 -048
(EMERGENCY ORDINANCE)
IMPOSING A MORATORIUM ON THE ACCEPTANCE AND PROCESSING
OF APPLICATIONS AND PERMITS FOR SUBDIVISIONS, BUILDING
PERMITS, AND DISCRETIONARY PERMITS THAT RELY ON PERMIT -
EXEMPT WELLS FOR WATER SUPPLY IN CLOSED BASINS
WHEREAS, an October 6, 2016 Washington State Supreme Court
decision ( Whatcom County, Hirst vs. Western Washington Growth
Management Hearings Board, No. 91475) has found that Whatcom County's
Comprehensive Plan does not comply with the Growth Management Act
(GMA) requirements for protecting water resources; and
WHEREAS, RCW 36.70A.070(1), requires that the land use element of
a county comprehensive plan "shall provide for protection of the quality and
quantity of groundwater used for public water supplies. "; and
WHEREAS, RCW 36.70A.070(5)(c)(iv) requires that the rural element
of a county comprehensive plan "shall include measures that apply to rural
development and protect the rural character of the area, as established by
the county, by:... protecting critical areas ... and surface water and
groundwater resources. "; and
WHEREAS, RCW 19.27.097(1) states: "Each applicant for a building
permit of a building necessitating potable water shall provide evidence of an
adequate water supply for the intended use of the building. Evidence may be
in the form of a water right permit from the department of ecology, a letter
from an approved water purveyor stating the ability to provide water, or
another form sufficient to verify the existence of an adequate water supply.
In addition to other authorities, the county or city may impose conditions on
building permits requiring connection to an existing public water system
where the existing system is willing and able to provide safe and reliable
potable water to the applicant with reasonable economy and efficiency. An
application for a water right shall not be sufficient proof of an adequate
water supply. "; and
Page 1 of 4
WHEREAS, RCW 19.27.095(1) states: "A valid and fully complete
building permit application for a structure, that is permitted under the zoning
or other land use control ordinances in effect on the date of the application
shall be considered under the building permit ordinance in effect at the time
of application, and the zoning or other land use control ordinances in effect
on the date of application. "; and
WHEREAS, RCW 58.17.110(2) requires that ''A proposed subdivision
and dedication shall not be approved unless the ... county legislative body
makes written findings that... appropriate provisions are made for... potable
water supplies... "; and
WHEREAS, RCW 58.17.170(2) states that lots in a long subdivision
A'shall be a valid land use notwithstanding any change in zoning laws for a
period of seven years from the date of filing if the date of filing is on or
before December 31, 2014, and for a period of five years from the date of
filing if the date of filing is on or after January 1, 2015," and, "Any lots in a
final plat filed for record shall be a valid land use notwithstanding any
change in zoning laws for a period of ten years from the date of filing if the
project is not subject to requirements adopted under chapter 90.58 RCW
and the date of filing is on or before December 31, 2007. "; and
WHEREAS, Whatcom County adopted Ordinance No. 2012 -032,
amending its Comprehensive Plan to adopt by reference existing
development regulations regulating ground water withdrawals; and
WHEREAS, the Growth Management Hearings Board (Board) found
the amended Comprehensive Plan lacked the required measures to protect
water resources (GMHB Case No. 12 -2- 0013); and
WHEREAS, on October 6, 2016, the State Supreme Court (Court), in
reversing a Court of Appeals decision, upheld the Board's decision that the
County's Comprehensive Plan does not satisfy the GMA requirements to
protect water availability, and stated, ' "We hold that the Board properly
concluded that the GMA requires counties to make determinations of water
availability. "; and
WHEREAS, the Court stated, "...the GMA places the burden on
counties to protect groundwater resources, and requires counties to assure
that water is both factually and legally available before issuing building
permits. "; and
Page 2 of 4
WHEREAS, the Court stated, "...The county's policies incorporate WCC
provisions that do not allow water to be withdrawn from 'an area where [the
Department of Ecology] has determined by rule that water for development
does not exist.' ...these ordinances further provide that an application for a
permit- exempt appropriation will be approved without any analysis of that
withdrawal's impact on instream flows. The Board found that these
provisions result in water withdrawals from closed basins and senior
instream flows —flows that the record indicated drop below the minimum
levels 100 days out of the year. The Board properly held that this conflicts
with the requirement placed on counties to protect water availability under
the GMA... "; and
WHEREAS, Chapter 173 -501 WAC Instream Resources Protection
Program - Nooksack Water Resource Inventory Area (WRIA) 1 identifies
water bodies in Whatcom County that are closed or partially closed to further
appropriation, by listing their status as "closure," "partial year closure," "low
flow," or "minimum flow, "; and
WHEREAS, WCC 20.97.321 defines project permits as "any land use
or environmental permit or license required from Whatcom County for a
project action including but not limited to building permits, subdivisions,
binding site plans, planned unit developments, conditional uses, shoreline
substantial project permits, variance, lot consolidation relief, site plan
reviews, permits or approvals authorized by a Comprehensive Plan or
subarea plan "; and
WHEREAS, an emergency exists in the need to comply with the
Supreme Court ruling and to prevent the vesting of permits that could allow
the withdrawal of groundwater contrary to the Supreme Court decision; and
WHEREAS, an emergency moratorium would allow Whatcom County
time to review its Comprehensive Plan and development regulations in light
of the Supreme Court ruling, and to draft and enact the necessary
amendments as soon as feasible; and
WHEREAS, the Whatcom County Charter limits an emergency
ordinance not to exceed 60 days from the effective date of adoption; and
WHEREAS, the County Council is required to hold a public hearing
within 60 days of passage of this ordinance:
NOW, THEREFORE, BE IT ORDAINED that the Whatcom County
Council adopts the above "WHEREAS" recitals as findings of fact in support
Page 3of4
of it action as required by RCW 36.70A.390.
BE IT FURTHER ORDAINED by the Whatcom County Council that an
emergency moratorium is hereby imposed prohibiting the filing, acceptance,
and processing of new applications for project permits (as defined in WCC
20.97.321) for uses that rely on permit- exempt groundwater withdrawals for
water supply on property located within a closed or partially closed basin (as
identified in Chapter 173 -501 WAC, shown in Exhibit A), except project
permit applications in closed or partially closed basins that provide
documentation at the time of application submittal that there is an adequate
and legal water supply to serve the proposed use in the form of:
(1) A water right from the Department of Ecology, or
(2) A letter stating the ability to provide water from a municipal or
public water purveyor not dependent on a permit- exempt well, with
adequate water rights issued by the Department of Ecology, or
(3) A rainwater catchment system approved by the Whatcom County
Health Department.
ADOPTED this 25th day of October , 2016.
WHAT(7.0M` ) ;OUNCIL
WHPp I ] ;, WASHINGTON u `
Dabla Br our cil Clerk
•. 4l.
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/11!911'o100. Y
APPRDV D as to form:
Civil Deputy Prosecutor
Barry uchanan, Chairperson
Jack Lou xecutive
(,Approved O Denied
Date:
7,q,'VA
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